rfq-rfp2017-018 design-build for city lake aquatic center … · 2016. 11. 23. · purchasing, city...

REQUEST FOR QUALIFICATIONS and REQUEST FOR PROPOSALS (RFQ/RFP) NO. 2017‐021

DESIGN ‐ BUILD FOR

CITY LAKE AQUATIC CENTER IMPROVEMENTS

CLOSING DATE AND TIME: December 15, 2016 ‐ 2:00 P.M.

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Design ‐ Build for City Lake Aquatic Center Improvements TABLE OF CONTENTS

GENERAL CLAUSES AND CONDITIONS…………………………………………………………………………. 3

SPECIAL PROVISIONS………………………………………………………………………………………………… 6

GENERAL PROVISIONS…………………………………………………………………………………………………. 7 CONFLICT OF INTEREST QUESTIONNAIRE AND HB1295 NOTIFICATION……………………… 24

STANDARDS OF CONDUCT…………………………………………………………………………………………. 27

NON‐EXCLUSION AFFIDAVIT FOR GENERAL CONTRACTORS……………………………………….. 29

INSURANCE………………………………………............................................................................. 30

SECTION 1 ‐ GENERAL INFORMATION & REQUIREMENTS…………………………………………… 32

SECTION 2 ‐ SPECIFICATIONS FOR THE RFP…………………………………………………………………. 37

SECTION 3 ‐ STEP 1 ‐ EVALUATION CRITERIA………………………………………………………………. 39 SECTION 4 ‐ FORMAT OF STEP 1 QUALIFICATIONS..……………………………………………………. 41

SECTION 5 ‐ STEP 2 ‐ EVALUATION CRITERIA……………………………………………………………… 43

SECTION 6 ‐ FORMAT OF STEP 2 PROPOSALS…………………………………………………………….. 45

PRICING LINE ITEM SHEET………………………………………………………………………………………….. 47

SCORING SCALE…………………………………………………………………………………………………………. 48 SECTION 7 ‐ EXECUTION OF OFFER……………………………………………………………………………… 49 REFERENCES ………………………………………………………………………………………………………………. 51 NOTICE………………………………………………………………………………………………………………………. 52 CONTRACT………………………………………………………………………………………………………………….. 53 PAYMENT BOND…………………………………………………………………………………………………………. 92 PERFORMANCE BOND………………………………………………………………………………………………… 94 CONTRACTOR'S AFFIDAVIT OF FINAL PAYMENT AND RELEASE…………………………………… 96 CONTRACTOR'S AFFIDAVIT OF RELEASE OF LIENS………………………………………………………. 97 AFFIDAVIT OF PARTIAL WAIVER OF LIEN AND RELEASE………………………………………………. 98 DESIGN CRITERIA & SPECIFICATIONS…………………………………………………………………………… 99

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The City of Mesquite, Texas invites sealed qualification responses from all qualified vendors desiring to furnish the City with the Design ‐ Build for City Lake Aquatic Center Improvements, complying with the following specifications as listed herein. An on‐site pre‐proposal conference will be held at 10:00 a.m. on Monday, December 5, 2016 at City Lake Aquatic Center, located at 200 Parkview Street, Mesquite, TX 75149. Six (6) copies of the response may be submitted by courier or hand delivered to Ryan Williams, Manager of Purchasing, City of Mesquite, 1515 N. Galloway, Mesquite, Texas 75149. Responses may also be mailed to Ryan Williams, Manager of Purchasing, City of Mesquite, P.O. Box 850137, Mesquite, Texas 75185‐0137. Mark envelope in lower left corner "RFQ/RFP No. 2017‐ 021; Design – Build for City Lake Aquatic Center Improvements,” so that the responses will not be opened until the appointed hour. Responses may also be submitted by courier, hand delivered in a sealed envelope or box to Ryan Williams, Manager of Purchasing, City of Mesquite, 1515 N. Galloway Avenue, Mesquite, Texas 75149. Responses submitted must be received before proposal closing on Thursday, December 15, 2016 at 2:00 p.m. Faxed bid proposals will not be accepted.

GENERAL CLAUSES AND CONDITIONS

1. If you have questions regarding the preparation of your response you may contact Ryan Williams, Manager of

Purchasing, at 972‐216‐6394 or email at: [email protected]. For technical questions, contact

Robert Blankenship, Park Project Manager, telephone 972 216‐6413, [email protected].

2. Vendors who do not respond to this particular request, but who want to remain on our mailing list for future

opportunities shall indicate “NO RESPONSE” on the face of this page by putting the date and signed by the

authorized representative of your company and return this page to the Purchasing office. Your assistance in this

matter is greatly appreciated. 3. Protection of Resident Workers: The City of Mesquite actively supports the Immigration and Nationality Act (INA)

which includes provisions addressing employment eligibility, employment verification, and nondiscrimination. Under the INA, employers may hire only persons who may legally work in the United States (i.e., citizens and nationals of the U.S.) and aliens authorized to work in the U.S. The employer must verify the identity and employment eligibility of anyone to be hired, which includes completing the Employment Eligibility Verification Form (I‐9). The Contractor shall establish appropriate procedures and controls so no

4. Laws and Ordinances: The Contractor shall at all times observe and comply with all Federal, State and local laws, ordinances and regulations which in any manner affect the Contract or the work, and shall indemnify and save harmless the City against any claim arising from the violation of any such laws, ordinances and regulations whether by the Contractor or his employees.

5. Submit one (1) original and five (5) complete copies of the entire Response with two (2) complete consolidated electronic copy of files in PDF format on a flash drive. Responses must be received prior to the closing date and time to be considered. Responses must be submitted in sufficient time to be received and time‐stamped at the above location on or before the published date and time shown on the RFQ/RFP. The City of Mesquite will not be responsible for mail delivered from the post office. Responses received after the published time and date cannot be considered and will be returned unopened.

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6. Responses will be received and publicly acknowledged at the location, date and time stated above. Only the name of the respondents responding to this request for qualifications shall be released at the response opening. Other information submitted by the respondent shall not be released by the City during the proposal evaluation process or prior to contract award. At no time will confidential information, as noted by the respondent, be released.

7. Respondent shall attach official documentation from the State of Texas or other qualified certification agency of

M/WBE status of your company with bid/proposal. This data is for informational purposes only and will not affect the award.

8. A completed W‐9 form will be required within five business days by the apparent low respondent once notification

has been received. 9. In submitting an offer, respondent certifies that they have not participated in nor have they been party to any

collusion, price fixing or any other illegal or unethical agreements with any company, firm or person concerning the pricing offered.

10. The attached Non‐Exclusion Affidavit for General Contractors must be signed, notarized and submitted with

response. 11. A representative of the proposing entity who is authorized to enter into contract on behalf of the proposing entity

must manually sign response in ink. The person signing the response must indicate his/her title along with signature. Responses received without proper signature will not be considered.

12. The prices subsequently negotiated shall be F.O.B. Mesquite and cover costs for packaging, delivery, and handling,

REGARDLESS OF THE SIZE OF ORDER, to the City of Mesquite, City Lake Aquatic Center, 75149. 13. Any ambiguity in the response as a result of omission, error, lack of clarity or non‐compliance by the respondent

with specifications, instructions and all conditions shall be construed in favor of the City. 14. The City of Mesquite reserves the right to reject any and all responses, waive formalities and to make award as

may be deemed to the best advantage of the City. No response may be withdrawn within forty‐five (45) days after date of opening.

15. This Contract may be terminated at any time with thirty‐(30) days written notice by either the City of Mesquite or

successful respondent.

16. The City is not liable for any cost incurred by Respondents in replying to this RFQ/RFP. This includes costs to

determine the nature of the response, submitting, negotiating, presentations or any other costs a vendor would

incur in responding to the RFQ/RFP. 17. Respondents shall complete all information requested and blanks provided shall be filled in on the provided forms.

Failure to completely describe the merchandise being proposed may result in rejection of your response. 18. The City is exempt from all sales and excise taxes. 19. The City of Mesquite reserves the right to evaluate variations from these specifications. If exceptions are made,

respondent shall state wherein the merchandise fails to meet these specifications. Failure to completely describe the merchandise being proposed may result in rejection of your response.

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20. It shall be understood all responses, inquires or correspondence relating to or in reference to this RFQ/RFP, and all reports, charges and responses or referencing information submitted in response to this RFQ/RFP shall become the property of the City, and will not be returned. The City will use discretion with regard to disclosure of proprietary information contained in any response, but cannot guarantee information will not be made public. As a governmental entity, the City is subject to making records available for disclosure.

21. All restrictions on the use of data contained within a response and all confidential information must be clearly stated in the RFQ/RFP. Proprietary information submitted in response to the RFQ/RFP, will be handled in accordance with the Texas Open Records Law and other applicable state statutes.

22. It is the vendor’s responsibility to check for any addendums that might have been issued before the proposal

closing date and time.

23. Cooperative Purchasing: As permitted under the Texas Local Government Code, Chapter 791025, other government entities may wish to also participate under the same terms and conditions contained in this contract (piggyback). Each entity wishing to piggyback must have prior authorization from the City of Mesquite and vendor. If such participation is authorized, all purchase orders will be issued directly from and shipped directly to the entity requiring supplies/services. The City of Mesquite shall not be held responsible for any orders placed, deliveries made or payment for supplies/services ordered by these entities. Each entity reserves the right to determine their participation in this contract.

Successful respondent agrees to extend prices to all entities that have entered into or will enter into joint

purchasing interlocal cooperation agreements with the City of Mesquite _______Yes _______No. 24. The response evaluation process will occur after the closing date. The City’s evaluation and clarification process

will commence. An evaluation team will review the responses. Criteria described in this RFQ/RFP will be considered, as well as any other factors the evaluation team determines may affect the suitability of the response for the City’s requirements. A Respondent’s submission constitutes their acceptance of the evaluation technique.

25. The insurance requirements are included in this document. Respondents agree to provide and to maintain the

required types of insurance for the term of the contract. An original certificate of insurance will be required within 10 business days by the apparent successful contractor once notification has been received.

26. All Respondents must submit, with Step 2, either a Bid Bond on the form provided herein, a Cashier’s Check or

Certified Check in the amount of five percent (5%) of the Proposed Project Construction Budget. 27. The Contract, Performance bond and Payment bond forms are included for respondent’s information so that

respondents may be familiar with their contents and requirements. Respondent shall not fill in or execute these forms at time of proposal submittal. Upon award of the proposal, the awarded vendor will be required to execute the contract.

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SPECIAL PROVISIONS 1. The successful respondent’s rights and duties awarded by the contract may not be assigned to another without

written consent of the City signed by the City’s authorized agent. Such consent shall not relieve the assigned of liability in the event of default by the assignee.

2. Any deviations from specifications and alternate responses must be clearly shown with complete information

provided by the respondent. They may or may not be considered by the City. 3. No oral statement of any person shall modify or otherwise change, or affect the terms, conditions or specifications

stated in the resulting contract. All change orders to the contract will be made in writing and shall not be effective unless signed by an authorized representative of the City.

4. The City shall have the right to modify this order subject to an adjustment in the price in accordance with the

applicable provisions of the purchase order, if any, or pursuant to mutual agreements. No agreement or understanding to modify this order shall be binding on the City unless it is in writing and signed by an authorized representative of the City.

5. The City reserves the right to require additional technical information and negotiate all elements which comprise

the Vendor’s response to ensure that the best possible consideration be afforded to all concerned. The City reserves the right to accept all or part of any proposal, to reject any or all proposals and to re‐solicit for proposals.

6. Services or products under the Contract Documents shall not be performed or manufactured by any worker who is not legally eligible to perform such services or employment.

7. All questions must be submitted via fax at 972‐216‐6397 or email only by 2:00 p.m. on Friday, December 9, 2016 to Ryan Williams, Manager of Purchasing at [email protected] prior to proposal closing date.

8. Respondents shall submit a total of five (5) work references. 9. Respondents shall fill out the following required documents. If the following forms are not included, the response may

be considered non‐responsive. Check List:

Conflict of Interest Questionnaire Non‐Exclusion Affidavit for General Contractors References Bid Bond/Cashier’s Check/Certified Check Contractor’s Signature Page Execution of Offer, if short‐listed

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SECTION GP

GENERAL PROVISIONS

(REVISED 04/19/2012)

General Provisions can be obtained through The City of Mesquite’s Purchasing Office located at 1515 N. Galloway Avenue, Mesquite, TX 75149 or by linking to the City of Mesquite’s Web site at www.cityofmesquite.com – Departments Information – Purchasing Division. For additional information contact the Purchasing Office at 972‐216‐6201.

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TO

NORTH CENTRAL TEXAS

STANDARD SPECIFICATIONS

FOR

PUBLIC WORKS CONSTRUCTION

This addendum to the North Central Texas Standard Specifications for Public Works Construction, Division 100 General Provisions, Fourth Edition, dated October 2004 sets forth exceptions or requirements of the City of Mesquite and thereby takes precedence over any conditions or requirements of the North Central Texas Standard Specifications for Public Works Construction, Division 100 General Provisions with which it is in conflict. The comments are itemized by the North Central Texas Standard Specifications for Public Works Construction, Division 100 General Provisions section reference number followed by specific comments. 101.1 DEFINITIONS Add the following definitions: Advertisement: All of the legal publications pertaining to the work contemplated or under contract. Apparent Low Bidder: The bidder determined to have the numerically lowest bid as a result of the tabulation of bids by the Owner. Award: The City Council’s acceptance of the Contractor’s bid for a proposed contract that authorizes the Owner to enter into a contract. Bid Bond: The approved form of proposal guarantee furnished by the Contractor and his surety as security for compliance with all conditions of such proposal guarantee as set forth in the General Provisions. Bidder: Any person, persons, partnership, company, firm, association or corporation or combination thereof, acting directly or through a duly authorized representative submitting a proposal for the work contemplated. Calendar Day: A calendar day is defined as any day of the week or year; no days being excepted. City: The City of Mesquite, Texas, a municipal corporation, acting by and through (a) its governing body, (b) its Mayor or (c) its City Manager, each of whom is required by Charter to perform specific duties. Responsibility for final enforcement of contracts involving the City of Mesquite is by Charter vested in the City Manager. Claim: Compensation for any alleged damage by reason of the acts or omissions of the Owner. Consulting Engineer: The person, firm or entity hired as an independent consultant by the Owner to design the Project and represent the Owner in the administration of the Contract in whatever capacity the Owner designates; the Owner may, at sole option, designate the Consulting Engineer to be the Engineer for purposes of administration of the Contact. The Consulting Engineer shall be understood to be the Consulting Engineer of the Owner, and nothing contained in the Contract Documents shall be construed to make the Consulting Engineer an employee of the Owner, nor shall they be construed to create any contractual or agency relationship between the Consulting Engineer and the Contractor. The term includes the officers, employees, associates, agents or sub‐consultants of the Consulting Engineer, if any.

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Contractor’s Qualification Information: qualification forms completed by a Bidder reflecting a Bidder’s financial data and experience. Effective Start Date: The date indicated in the Notice to Proceed as the date of commencement of Work which is the date from which the start of Contract Time is measured. Field Order: A written order issued by the Owner’s Representative which orders minor changes or clarifications in the Work which do not involve a change in the Contract Time or Contract Price. General Conditions: The special clauses of the contract setting forth conditions or requirements supplementing the standard or general specifications and taking precedence over any conditions or requirements. General Design Standards: The General Design Standards developed, adopted and published by the City of Mesquite ‐ Engineering Division. Owner: The City of Mesquite, Texas. Owner’s Inspector: The Public Works Construction Inspector of the City of Mesquite or the person designated by the Owner’s Representative to inspect the work for the City, more than one inspector may be assigned to a project. Owner’s Representative: The City Engineer of the City of Mesquite or the person designated by the City Engineer to represent the City, or such other person as authorized by the City in the contract documents. Product: The term “product” includes materials, systems, and equipment. Proposal: The written statement or statements duly filed with the Purchasing Agent, whether in the form of a sealed bid, proposal, quotation or other form, of the person, persons, partnership, company, firm, association or corporation proposing to do the work contemplated. Proposal Guarantee: The security designated in the advertisement and proposal, to be furnished by each bidder as a guarantee of good faith to enter into a contract with the Owner and comply with all conditions provided for such Proposal Guarantee in the General Provisions (reference Section 102.5). Provide: The term “provide” means to furnish and install. Request for Information (RFI): A written request from the Contractor to the Owner’s Representative for plan or specification interpretation or clarification. Shop Drawings or Submittals: All drawings, diagrams, illustrations schedules, and other data which are specifically prepared by or for the Contractor to illustrate some portion of the Work and all illustrations, brochures, standard schedules, performance charts, instructions, manufacturer’s data, diagrams, and other information submitted by the Contractor to the Owner’s Representative for approval (reference Section 105.3). Standard Details: Standard details developed, adopted and published by the City of Mesquite Engineering Division or the standard details developed by other agencies or engineers that are included in the project plans or specifications. Substantially Complete: In the opinion of the Engineer, that the Work has been made suitable for use or occupancy or is serving its full intended purpose, but may require minor miscellaneous work or adjustment as evidenced by issuance of a Certification of Substantial Completion by the Owner’s Representative.

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Working Hours: Work shall be done only during the regular and commonly accepted and described working hours between 7:00 a.m. and 6:00 p.m. No work shall be done nights, Sundays or regular holidays unless written permission is given by the Owner’s Representative.

Official City Holidays are: New Year’s Day Holiday Martin Luther King Jr. Day Memorial Day Independence Day Labor Day Thanksgiving Day Thanksgiving Friday Christmas Day Holiday Written Notice: Written notice shall be deemed to have been duly served if delivered in person to the individual or to a member of the firm or to an officer of the corporation for whom it is intended, or if delivered at or sent by registered mail to the last business address known to him who gives the notice. 102.1 PROPOSAL FORM Add: Proposal Forms may be obtained as provided in the advertisement for bids. Add to the end of the Section the Following Subsections: 102.1.1 Contract Price. The total Contract Price shall cover all Work required by the Contract Documents. All costs in connection with the proper and successful completion of the Work, including furnishing all materials, equipment, supplies, and appurtenances; providing all construction plant, equipment, and tools; and performing all necessary labor and supervision to fully complete the Work, shall be included in the unit and lump sum prices bid. All Work not specifically set forth as a pay item in the Bid Form shall be considered a subsidiary obligation of Contractor and all costs in connection therewith shall be included in the prices bid. 102.1.2 Pay Items. Items not listed in the bid proposal shall be considered subsidiary to the construction and no additional compensation will be given for them. 102.3. EXAMINATION OF PLANS, SPECIFICATIONS AND SITE OF THE WORK Add to End of Section the Following Subsections: 102.3.1. Addenda. Bidders desiring further information, or interpretation of the plans and specifications, must make request for such information in writing to the Owner’s Representative five (5) working days prior to the date of the bid opening. Answers to such requests will be given in writing to all bidders by Addendum and such Addendum shall be made a part of the Contract Documents. No other explanation or interpretation will be considered official or binding. Should a bidder find discrepancies in the plans, specifications or quantities, or should he be in doubt as to their meaning, he shall at once notify the Owner’s Representative in order that a written Addendum may be sent to all bidders. Any Addenda issued prior to twenty‐four (24) hours before the opening of bids will be delivered by facsimile or email to all plan holders on record with the City of Mesquite. The proposal as submitted by the Bidder will be so constructed as to include any Addendum issued by the Owner’s Representative prior to twenty‐four (24) hours before the opening of bids. The Bidder must acknowledge in the proposal bid forms that all addendums have been received.

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102.3.2. Pre‐Bid Inspection. Bidder shall inspect the site prior to bidding and prior to move in. Bidder's inspection shall include but not be limited to observation and verification of existing grades, topographic conditions, surface and subsurface soil conditions and surface and subsurface water drainage conditions, observation and verification of any existing utility, appurtenance, or structure as it may relate to the contract. This shall include but not be limited to: Water and sewer appurtenances. Storm sewer structures and appurtenances. Concrete structures and appurtenances. Petroleum pipeline systems and appurtenances. Natural Gas pipeline systems and appurtenances. Telecommunications systems and appurtenances. Electrical systems and appurtenances. Television cable systems and appurtenances. Irrigation systems and appurtenances.

102.3.3. Geotechnical Data. Soil Borings, soil profiles, ground water elevations, and underground utilities shown on the plans have been obtained for use in preparation of the plans. The Owner makes no representation or warranty to the accuracy of this geotechnical data. 102.3.4. Quantity Verification. Bidders shall verify all quantities included in the bid proposal prior to submitting bid. Should any major quantity discrepancy between stated bid quantities and Bidder's estimate be found, Bidder shall notify the Owner’s Representative in writing, prior to submitting bid, and obtain a clarification and/or correction to the stated bid quantity. By submitting a bid, Bidder represents that estimates were performed and no major quantity discrepancies were found. 102.3.5. Subsidiary Cost: It is the intent of the Contract Documents, Technical Specifications, Supplemental Specifications, and plans to describe the construction and subsidiary activities and materials necessary to furnish and install a complete in place project, ready for its intended use, accepted by the Owner’s Representative. Those materials and work necessary to furnish and install a complete in place project, conforming to the plans and specifications, that are not specifically identified in the bid proposal, technical specifications, or the supplemental technical specifications as pay items shall be considered as subsidiary to the contract as a whole, and as such shall not be submitted for individual payment by the Contractor. The cost of those subsidiary items shall be reflected in the prices stated in the bid proposal. It shall be the responsibility of the Contractor to review the bid proposal, plans, technical specifications, and supplemental technical specifications and site conditions to determine those materials and work which are not specifically identified but which shall be necessary to furnish and install a complete project in place. 102.4. PREPARATION OF PROPOSAL Change: in the second sentence “both in words and numerals” to “in numerals” Add after the first sentence: The bidder shall submit Bid Proposals on Bid Forms in the contract document or from computer generated forms supplied by the Owner. Modifications, revisions and creations of a new computer generated form not furnished by the Owner shall be considered an irregular proposal and may disqualify the bidder. Unit prices shown on the Bid Proposals shall state the prices for which he proposes to do the work contemplated or furnish the material required. 102.5 PROPOSAL GUARANTY Add to the end of the section: An acceptable Surety per the terms of GP Section 103.3 SURETY BONDS shall execute the bidder’s surety bond, together with the bidder, as Principal. In addition, the Bidder and its agents shall have no financial interest in the Surety.

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102.7. WITHDRAWING PROPOSALS Change: In the last sentence, change “90 days” to “120 days”. Add: After the 120‐day period, if agreed to in writing between Contractor and Owner, the bid will stay in effect, without change, for a period agreed to between the Contractor and Owner. 102.8 OPENING PROPOSALS Delete the last sentence of this section. 102.9. CONSIDERATION OF PROPOSAL Add: When required by the bid documents, within 48‐hours of the bid opening, the apparent low bidder must submit to the Owner, the Bidder’s Qualification Information on the forms provided in the bid documents providing evidence that the bidder is capable of properly executing the work. 102.10. IRREGULAR PROPOSALS Add: After the words “irregular if” add “, in the sole opinion of the Owner,”. 102.12. DISQUALIFICATION OF BIDDERS Add: (9) The bidder being party to any litigation against the Owner; (10) The bidder being in arrears on any existing contract or other financial obligation or debt. (11) Lack of experience, competency, ability, capacity of the bidder to perform the contract or provide the service

required as revealed by the Bidder’s Qualification Information. (12) Lack of a current financial report as required in the Bidder’s Qualification Information submission requirements. (13) The quality, availability and adaptability of the supplies, materials, equipment or contractual services, to the

particular use required. (14) The number and scope of conditions attached to the bid proposal. (15) Whether the bidder can perform the contract or provide the service promptly, or within the time required, without

delay or interference. (16) The character, responsibility, integrity, reputation, experience and safety record of the bidder. (17) The previous and existing compliance by the bidder with laws relating to the contract or service. (18) Any previous or existing noncompliance by the bidder to perform the contract or provide the service. (19) The ability of the bidder to provide future maintenance, repair parts, and service for the subject contract. (20) Rejection of bid when a bid is submitted in which there is a material failure to comply with the specification

requirements (21) Evidence that contractor, subcontractor have been suspended, debarred, or otherwise excluded from participation

in federally funded programs. 103.2. AWARD OF CONTRACT Change: In the first sentence, change “90 days” to “120 days”. Add: The right is reserved, as the interest of the Owner may require, to reject any and all bids and waive any informality of bids received. 103.3.1.1. Performance Bond. Change: In the last sentence, change “period of one year” to “period of two years”. 103.3.1.4. Bond Amounts Based on Contract Amounts Delete entire section.

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103.3.3. Sureties. Delete second to last sentence and Replace with: The surety shall designate an agent in Dallas County, Texas who is acceptable to the Owner to whom any requisite notices may be delivered and on whom service of process may be had in matters arising out of such suretyship. Legal venue for enforcement of the bonds shall lie exclusively in Dallas County, Texas. 103.4 INSURANCE Delete entire subsection 103.4.1. Contractor’s Insurance, including subsections and Replace with: 103.4.1 Contractor’s Insurance. The Contractor and his subcontractor(s) shall not commence work on any contract in the City of Mesquite until he has obtained, for himself and all subcontractors, all the insurance required under this paragraph, and such insurance has been approved by the Owner. The Contractor and his subcontractor(s) agrees to provide and to maintain the following types and amounts of insurance, which may be satisfied by any combination of primary, excess or umbrella liability insurance, for the term of this Contract: Amounts and Types of Insurance:

Type Amount

1 Workers Compensation/Employer's Liability Statutory $100,000 per occurrence

2

Commercial (Public) Liability, including, but not limited to: A. Premises/Operations B. Independent Contractors C. Personal Injury D. Products/Completed Operations E. Contractual Liability (insuring above indemnity

provisions) F. Explosion or Cave‐in

Bodily Injury: $500,00 per person, $1,000,000 per occurrence and Property Damage: $500,000 per occurrence with general aggregate of $1,000,000

3 Automobile Policy Combined Single Limit ‐ $500,000.00

The required limits may be satisfied by any combination of Primary, Excess or Umbrella liability coverage. The preceding amounts notwithstanding, Owner reserves the right to decrease or increase the minimum required insurance either as provided in the contract documents or after thirty (30) days’ notice is sent to the Contractor’s address as shown on Contractor’s Proposal. The Contractor may pass through to the Owner all costs for obtaining the increase in the insurance coverage. The Contractor understands that it is its sole responsibility to provide Certificates of each policy before any work is started and that failure to timely comply with the stated policy endorsements and special conditions hereinafter specified shall be a cause for termination of this Contract. Prior to the effective date of cancellation of any coverage, the Contractor must deliver to the Owner a replacement Certificate or proof of reinstatement. In addition to the Certificates, all Policies shall be subject to examination and approval by the City Attorney's office for their adequacy as to form, content, form of protection and the providing company. Insurance required by this Contract for the Owner as additional insured shall be primary insurance and not contributing with any other insurance available to the Owner, under any third party liability policy.

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Delete entire subsection 103.4.2. Owner’s Protective Liability Insurance and Replace with:

103.4.2 Worker's Compensation Insurance. The Owner shall require worker’s compensation insurance coverage as defined in Section 401.011(44) of the Texas Labor Code from any contractor before entering into a building or construction contract to prove in writing that the Contractor and all subcontractors shall provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which meets the statutory requirements set forth in Section 406.096 of the Texas Labor Code, for all persons providing services on the project, for the duration of the project. 103.6 NOTICE TO PROCEED AND COMMENCEMENT OF WORK Add: Prior to the start of work, the Owner may arrange a Pre‐Construction Conference with the Contractor and appropriate Owner staff. The Pre‐Construction Conference shall be scheduled no later than 10 days after the Contract is fully executed. The Notice to Proceed (NTP) shall state the date upon which the Contract time (the Effective Start date) shall start. The Effective Start date will be within 10 days after the Pre‐Construction Conference for the Project is held unless requested otherwise in writing by the Owner’s Representative. Add The Following Section: 103.8. COST BREAKDOWN (SCHEDULE OF VALUES FOR LUMP SUM BIDS OR BID ITEMS) The Contractor shall prepare and submit for approval to the Owner’s Representative at the preconstruction meeting a breakdown of lump sum items, identified by the Owner, for the various parts and classes of work to be performed under the Contract. 105.1.1 Priority of Contract Documents. Delete entire subsection and Replace with: The bid documents, contract, bonds, bid form, general provisions, special provisions, technical specifications, general specifications, plans, details, appendixes and all supplementary information and referenced standards cited are essential parts of the contract requirements. A requirement occurring in one is as binding as though occurring in all. They are intended to be complementary and to describe and provide for a complete work. In case of discrepancy or conflict: written out or calculated dimensions shall govern over scaled dimensions; large‐scale details shall govern over general or smaller scale details; project specific details shall govern over general or standard details; Special Provisions shall govern over General Provisions; project specific technical specifications shall govern over standard specifications; City of Mesquite General Design Standards shall govern over North Central Texas Standard Specifications for Public

Works Construction, Fourth Edition, dated October 2004; City of Mesquite General Design Standards shall govern over Texas Department of Transportation (TXDOT) Standard

Specifications for Construction and Maintenance of Highways, Streets and Bridges, 2004 Edition. 105.1.3. Contract Drawings and Specifications. Add at the end of the first paragraph: “The only plans authorized for use are stamped: RELEASED FOR CONSTRUCTION CITY OF MESQUITE ENGINEERING DIVISION (DATE) THESE PLANS SHALL BE ON THE JOB SITE AT ALL TIMES

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105.2.2. Special Warranty. Change: In the first sentence, change “one year” to “two years”. 105.3. SHOP DRAWINGS, PRODUCT DATA AND SAMPLES Delete: The last sentence in the last paragraph. 105.4. CONSTRUCTION STAKES Delete: Entire first paragraph of section. Add: The Contractor is responsible for furnishing at Contractor’s expense all construction staking necessary to establish line and grade.). The Consulting Engineer will provide one‐time location of survey control points for the Contractor’s surveyor. Prior to construction the Contractor shall field verify elevations and locations of tie‐in points for existing utilities. If discrepancies are discovered between field conditions and plan elevations the Contractor shall notify the owner immediately of the discrepancies. All construction staking is subject to checking and verification by the Owner’s Representative. The hiring of a Registered Land Surveyor shall comply with Article 2254.004 of the Texas Governmental Code (Professional Services Procurement Act. 105.6. SUPERVISION BY CONTRACTOR Add: The Contractor shall at all times have on the site of the work a superintendent or general foreman on site if any work is being done or any materials are being delivered to the project location. The Contractor superintendent and general foreman shall be fluent in speaking, reading and writing English. 105.7.1 Authority of the Engineer Add: The Owner’s Representative has the authority to stop the work whenever such stoppage may be necessary to insure the proper execution of the Contract. 105.7.2. Owner’s Representative’s Final Determination Add: Should the Contractor object to any order by any subordinate Owner’s Representative, the Contractor may, within six days make written appeal to the Owner’s Representative for his decision. 105.9 INSPECTION Add: The Owner’s Inspector shall not have the power to waive the obligations of this Contract for the furnishing by the Contractor of good material, and of his performing good work as herein described, and in full accordance with the plans and specifications. No failure or omission of the Owner’s Inspector to condemn any defective work or material shall release the Contractor from the obligation to at once remove and properly replace the same at any time prior to Owner’s final acceptance upon the discovery of said defective work or material. 105.9.1. Removal of Defective and Unauthorized Work. Add: If the Owner’s Representative prefers to accept Work which is defective and/or not in accordance with the requirements of the Contract Documents, the Owner’s Representative may accept Work instead of requiring its removal and correction, prior to recommendation of final payment. Work found to be defective and accepted by the Owner shall be, at the discretion of the Owner’s Representative and without recourse by the Contractor, subject to partial or non‐payment. Contractor shall bear all direct, indirect, and consequential costs attributable to the Owner’s evaluation of any determination to accept such defective work (such costs to be approved by the Owner’s Representative as to reasonableness, and to include, but not be limited to, fees and charges of engineers, inspectors, architects, attorneys, laboratories and other professionals). If any such acceptance occurs prior to the Owner’s Representative's recommendation of final payment, a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work; and the Owner shall be entitled to an appropriate decrease in the Contract Price. If the acceptance occurs after such recommendation, an appropriate amount will be paid by the Contractor to the Owner.

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105.9.3. Inspection Overtime Delete the second sentence in the second paragraph and Replace with the following: “The Inspector’s normal working hours are 7:30 a.m. to 11:30 a.m. and 12:30 p.m. to 4:30 p.m., Monday through Friday with the exclusion of Official City Holidays. The Contractor will reimburse the Owner for all Inspection overtime outside the Inspector’s normal working hours. To arrange for inspection outside Inspector’s normal working hours a verbal request for overtime inspection must be communicated to the Owner’s Inspector two working days in advance. Work on Sundays and Holidays is prohibited except in the case of emergency and authorized, in writing, by the Owner’s Representative. Work between the hours of 6:00 P.M. and 7:00 A.M. must be approved by the Owner’s Representative. Overtime inspection shall be charged portal to portal. There is a two‐hour minimum charge for inspection on weekends or Official City Holidays. The Contractor will be charged a 2‐hour minimum overtime charge if the Contractor schedules inspection on weekends or Official City Holidays but then cancels work without notice to the Public Works Construction Inspector before the inspector shows up to the project. Delete: The last two paragraphs. Add: Inspection overtime will be reimbursed to the Owner by the Contractor at the rate of time‐and‐one‐half plus workman’s compensation, F.I.C.A. and other normal City benefits and pertaining rates. The Contractor will be billed monthly by the City for overtime charges. The City will not give final payment or give final acceptance of a project until inspector overtime charges are paid. 106.4. OFF‐SITE STORAGE Delete entire section and Replace with: The costs incurred in storage of materials or equipment away from the project site will not be made by the Owner. All costs incurred shall be the full responsibility of the Contractor and included in the Contractor’s bid. 106.5 SAMPLES AND TESTS OF MATERIALS Delete the first paragraph and Replace with: Where, called for in the specifications or in the opinion of the Owner tests and retests of materials or completed work are necessary, such tests will be made at the expense of the Contractor unless otherwise specified. Add at the end of the last paragraph: The Contractor shall designate and pay a recognized testing laboratory to perform all testing, if any, for this project. Such designation is subject to the approval of the Owner’s Representative. The hiring of the testing laboratory shall comply with Article 2254.004 of the Texas Governmental Code (Professional Services Procurement Act). The Testing Laboratory must furnish the inspector with one field copy of the test results. A typed paper copy must be mailed to the Owner’s Representative identified at the Pre‐Construction Conference. The Owner’s Representative may approve the submission of final test reports to the Owner by electronic means. Collection of potable water samples for bacterial sampling will be accomplished by the Contractor. The Contractor must prepare the sample point and assist the City Public Works Construction Inspector in collecting the sample. All work and materials used for the sampling point and taking the samples must conform to the latest version of the American Water Works Association. Delivery of the potable water sample to the testing laboratory and testing of the potable water sample will be at the Owner’s expense.

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107.2 INDEMNIFICATION Add the following subsections: 107.2.1 Contractor’s Responsibility. Contractor further agrees that it shall at all times exercise reasonable precautions on behalf of, and be solely responsible for, the safety of its officers, agents, employees, subcontractors, licensees, invitees, and other persons, as well as their property, while in the vicinity where the improvements are being made. It is expressly understood and agreed that City shall not be liable or responsible for the negligence of the Contractor, including but not limited to its officers, agents, employees, subcontractors, licensees, invitees, and other persons. 107.2.2 Premise Defects. Further, City assumes no responsibility or liability for harm, injury, or any damaging events which are directly or indirectly attributable to premise defects, real or alleged, in improvements constructed by Contractor which may now exist or which may hereafter arise upon the premises, responsibility for any and all such defects being expressly assumed by Contractor. Contractor understands and agrees that this indemnity provision shall apply to any and all claims, suits, demands, and/or actions based upon or arising from any such premise defects or conditions, including but not limited to any such claim asserted by or on behalf of Contractor, including but not limited to its officers, agents, employees, subcontractors, licensees, invitees, and other persons. 107.2.3 Notice of Claim. It is further agreed with respect to the above indemnity that City and Contractor will provide the other prompt and timely notice of any event covered which in any way, directly or indirectly, consequently or otherwise, affects or might affect the Contractor or City, and City shall have the right to compromise and defend the same to the extent of its own interests. 107.3 OWNER’S OFFICERS EMPLOYEES OR AGENTS Add the following subsection: 107.3.3 Specific Conflict of Interest Provisions Contractor shall at all times observe and comply with all Federal, State and local laws, ordinances and regulations relating to conflicts of interest, including all amendments and revisions thereto, which in any manner affect Contractor or the services and/or items to be provided. In particular, Contractor is put on notice that Owner will require compliance with Chapter 176 of the Texas Local Government Code (hereinafter referred to as the “Act”) requiring any person who contracts or seeks to contract with the Owner to disclose potential conflicts of interest as defined in the Act in accordance with the provisions of the Act. Failure to comply with any applicable laws, including the provisions of the Act, may result in: i) the forfeiture by Contractor of all benefits of the Contract; ii) the retainage by Owner of all services performed by Contractor and iii) the recovery by Owner of all consideration, or the value of all consideration, paid to Contractor pursuant to any awarded contract. 107.12 LABOR AND MATERIALS Add the following subsection: 107.12.1. LABOR CLASSIFICATION AND MINIMUM WAGE SCALE In compliance with State Law, the Contractor is required to pay all workers, including employees of subcontractors, for the construction of any public work project not less than the general prevailing rate of per diem wages in the locality for work of a similar character as determined by the City. The City has adopted the prevailing wage rates as determined by the U.S. Department of Labor in accordance with the Federal Davis Bacon Act for this Contract as provided by law. Attention is called to the fact that the inclusion of a minimum scale of wages to be paid to employees engaged in the work under this Contract does not release the Contractor from compliance with any Federal or State Wage Law that may be applicable to the project. The Contractor shall abide by Federal and State Wage and Hour Laws and must not pay less than the wages legally prescribed as set forth herein. In order to verify compliance with Federal or State wage laws and regulations, the Contractor may be required to submit a weekly certified payroll of all workers on the project listing name, social security number, labor classification, wage rates, hours worked and compensation paid.

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Under the provisions of the Texas Government Code, Title 10, Subchapter F, Section 2258.023, the Contractor shall forfeit as a penalty to the City on whose behalf the Contract is made or awarded, Sixty Dollars ($60.00) for each laborer, workman or mechanic employed, for each calendar day or portion thereof that such laborer, workman or mechanic is paid less than the said stipulated rates for any work under the Contract, by him or by any sub‐contractor under him. Such wage determinations must be for projects in Dallas County, Texas dated no more than 3 years prior to the date this Contract was advertised for bid In addition, the Contractor is required to obtain skilled and unskilled labor used on the work, when qualified, fit and available, first from residents within the City of Mesquite, Texas, and second from residents of Dallas County, if practical and available. However, the Contractor may bring his superintendent, foreman, sub‐foreman, machine operators and sufficient key men to round his organization. The wage rates in Appendix A have been determined by the City to be the prevailing rates applicable to the work to be done under this Contract as taken from a previous General Wage Decision issued by the U.S. Department of Labor within three (3) years of the date hereof. 107.13 EQUAL EMPLOYMENT OPPORTUNITY 107.13.5 Reports Add at the end of the first sentence: “if required by the Owner”. Add the following subsections: 107.13.6. Protection of Resident Workers: The Owner actively supports the immigration and Nationality Act (NA) which includes provisions addressing employment eligibility, employment verification, and nondiscrimination. Under the INA, employers may hire only persons who may legally work in the United States (i.e., citizens and nationals of the U.S.) and aliens authorized to work in the U.S. The employer must verify the identity and employment eligibility of anyone to be hired, which includes completing the Employment Eligibility Verification Form (I‐9). The Contractor shall establish appropriate procedures and controls so no services or products under the Contract Documents will be performed or manufactured by any worker who is not legally eligible to perform such services or employment. 107.13.7. Handicapped Discrimination Regulations: The handicapped discrimination regulations mandate equal opportunity and require that outside organizations such as labor unions and contractors who provide services to the local governments must not discriminate against qualified handicapped persons in employment decisions. 107.13.8. Non‐Compliance with Equal Employment Opportunity Provisions In the event of the Contractor's non‐compliance with the nondiscrimination clauses of this Contract or with any of the said rules, regulations, or orders, this Contract may be canceled, terminated, or suspended in whole or in part and the Contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. 107.14 STATE AND LOCAL SALES AND USE TAXES Add: If the Contractor performs under a separated contract as defined by Rule 3.291 by obtaining the necessary permit or permits from the State Comptroller's office allowing the purchase of materials for incorporation in this project without having to pay the Limited Sales and Use Tax at the time of purchase, the Contractor shall identify separately from all other charges the total agreed contract price for materials incorporated into the project. Total materials shall include only materials physically incorporated into the project.

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If the Contractor operates under a "separated contract," the Purchasing Division will furnish the Contractor with an exemption certificate for the applicable materials. In order to comply with the requirements of Rule 3.291, as mentioned above, Bidder shall obtain a sales tax permit. It shall be necessary that the Bidder issue resale certificates to suppliers. Sales tax application for a sales tax permit and information regarding resale certificates may be obtained by writing to: Comptroller of Public Accounts Capitol Station Austin, Texas 78774 The Contractor may also receive information or request sales tax permit applications by calling the State Comptroller's local Mesquite office at (214) 289‐3400. Subcontractors are eligible for sales tax exemption if the subcontract is made in such a manner that the charge for materials is separated from all other charges. The procedure described above will effect a satisfactory separation. When subcontracts are handled in this manner, the Contractor shall issue a resale certificate to the subcontractor, in turn, must issue a resale certificate to his supplier. 107.16 COMPLIANCE WITH LAWS Add: The Contractor shall indemnify and save harmless the Owner against any claims arising from the violation of any such law, ordinances and regulations. 107.16.1 Storm Water Permit. Delete entire paragraph and Replace with: If the project disturbs more than one‐acre of land the Contractor shall obtain a Storm Water Discharge permit required for construction of this project under regulations contained in the Texas Commission on Environmental Quality (TCEQ) Texas Pollution Discharge Elimination System (TPDES) General Permit TXR150000. The Contractor shall implement a storm water pollution prevention plan (SWP3); post the appropriate Construction Site Notice (CSN), and if the disturbed land area is 5‐acres or more complete and submit a Notice of Intent (NOI) to the TCEQ, including the $350 by mail or $250 by electronic payment, NOI fee. For permitting information and requirements, contact the Texas Commission on Environmental Quality (TCEQ) and the City of Mesquite. If a permit is required, the Contractor shall provide measures to control soil erosion, sediment, and water pollution created by construction operations for the duration of the Contract per the approved construction documents and as directed by the Owner’s Representative. 107.18 PUBLIC CONVENIENCE AND SAFETY Add the following subsections: 107.18.1. Temporary Water and Sanitary Sewer Service. When existing water or sanitary sewer mains or services have to be taken up or removed, the Contractor shall, at his own cost and expense, provide and maintain temporary outlets and connections for all private or public water, sanitary sewer and drain connections. The Contractor shall also take care of all sewage and drainage which will be received from these sanitary sewers and drains; and for this purpose he shall provide and maintain, at his own expense, adequate pumping facilities and temporary outlets or diversions. The Contractor, at his own expense, shall construct such piping, troughs, or other structures necessary, and be prepared at all times to dispose of sanitary sewer and drainage received from these temporary connections until such time as the permanent connections are built and in service. The existing water, sanitary sewer and drain connections shall be kept in service and maintained under the Contract, except where specified or ordered to be abandoned by the Owner’s Representative. All water, sewage or drainage shall be disposed of in a satisfactory manner so that no nuisance is created, and so that the work under construction will be adequately protected.

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107.18.2. Explosives. Explosives shall not be used in the prosecution of this project. 107.19.2. Protection of Persons and Property Add: At the end of the first sentence in the last paragraph “and City of Mesquite Work Zone Traffic Control Guidelines Manual”. Add: At the end of the section “In order to document site conditions and assist in resolving claims for construction damage the Contractor shall take digital pictures and/or digital video recordings of the site before construction. In addition, the Contractor shall during the course of construction periodically record site conditions using digital pictures and/or digital video recordings. The Contractor shall make these recordings at least monthly or more frequently if the Owner’s Inspector so orders. Copies of all digital photographs and/or video recordings shall be burned to DVD or other digital media acceptable to the Owner and provided to the Owner’s Inspector.” Add to end of section the following subsection: 107.19.2.1. Access to Property. The Contractor shall schedule the work such that inconvenience to the public and adjoining property owners shall be at a minimum. Access to all businesses shall be provided at all times during business hours. The Contractor will schedule work through residential areas in a manner that would expedite construction operations and will restore drive approach access at the end of each working day during execution of the project (except during paving operations of the specific residential drive approach). The Contractors shall maintain temporary drive approaches to the satisfaction of the Owner’s Representative. Private drives to residences shall not be closed for more than 10 days at any one time during paving operations. The Contractor will notify the Owner’s Representative Office one (1) week prior to any street or driveway closure. 107.19.3.6. Payment for Trench Safety and Special Shoring. Delete the first sentence and Replace with: “Payment for trench safety shall be by the lineal feet of trench regardless of depth.” 107.23.4. Utility Coordination and Protection Delete the first sentence and Replace with: “No franchise utility relocations have taken place in preparation for the project, and the location of existing utilities may not be shown on the plans. It is the Contractor's responsibility to notify utility companies to arrange for exact locations at least 48 hours prior to beginning construction. The Contractor is fully responsible to coordinate necessary utility relocation with the utility companies and will make all efforts to coordinate necessary relocation of utilities with the utility owner. The Owner shall not be held responsible by the contractor for any delays created by a franchise utility company relocating their facilities. The time of construction given for the project includes all necessary utility work involved with franchise utility companies. The Owner will make an effort to assist the Contractor in coordinating relocations before and during the project.”

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Delete: Table 107.23.4.(a) Utility Coordination

Replace with: Franchised Utilities (Electric, Phone, Cable & Gas)

Texas One Call Dial 811 or by internet at: http://tickets.texas811.org/tickets/submit

City of Mesquite Engineering Records Room for Obtaining Record (City Owned Water, Sanitary Sewer Drawings for Existing City Utilities & Storm Sewer) Email: [email protected]

Or 972‐329‐8536

City of Mesquite 972‐216‐6278 or 972‐216‐6973 or 972‐216‐8797 (Field Locates for City Owned Water and Sanitary Sewer)

City of Mesquite Traffic Signal Conduit & Loop Detectors Location: (Traffic Signal and City owned Optic Fiber) Fill out ‐ TRAFFIC SIGNAL & FREEWAY LIGHTING UTILITY LOCATE FORM: http://www.cityofmesquite.com/engineering/documents/Locate_Frm.doc

Add to the end of the section the following subsections:

107.23.5. Arrangement and Charge for Water Furnished by the City. Where Contractor desires to use City water in connection with any construction work, he shall make arrangements with the Mesquite Water Accounting Division for so doing. Where meters are used, the charge for water will be at the regular established rate; where no meters are used, the charge will be as prescribed by ordinance; or, where no ordinance applies, payment shall be made on estimates made by the Mesquite Engineering Division. 107.23.6. Use of Fire Hydrants. No person shall open, turn off, interfere with, attach any pipe or hose to, or connect anything with any fire hydrant, stop valve or stopcock, or tap any water main belonging to the City, unless duly authorized to do so by the Mesquite Utilities Division. 107.23.7. Operation of Existing Valves. The Contractor is not permitted to operate any valve in the existing City of Mesquite water system. The valves must be operated by City of Mesquite Utility Division employees only. 107.26 RESTORATION OF PROPERTY Add: The Contractor shall exercise special care to minimize damage to trees, plants, shrubs and irrigation systems along the route of the work. The Contractor shall notify adjacent property owners before beginning construction operations adjacent to their property of trees, plants and shrubs which lie inside the right‐of‐way or easements lines and within the normal limits of work. The property owner's shall be allowed to remove and protect their property, and all trees, plants and shrubs not so protected by the adjacent property owners shall be removed and disposed of by the Contractor, as directed by the Owner’s Representative.

Add the following section: 107.27 ANTI‐KICKBACK ACT

For any project funded by a Federal grant, the Contractor shall comply with the Copeland "Anti‐Kickback" Act (18 U.S.C. 874) or supplemented by Department of Labor regulations (29 CFR, Part 3). This Act provides that each contractor or sub grantee shall be prohibited from inducing, by any means, any person employed in the construction, completion or repair of public work, to give up any part of the compensation to which he is otherwise entitled. The grantee shall report all suspected or reported violations to the grantor agency.

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108.1 PROGRESS SCHEDULE Add: A monthly payment schedule is not required unless requested by the Owner. 109.1 PAYMENT FOR LABOR AND MATERIAL; NO LIENS Add: The Contractor is not required to furnish payrolls and records unless this submittal is required as a Special Provision to the Contract. The Contractor is still required to comply with the minimum wage rates published by the Owner. 109.2 PAYMENT FOR MATERIALS Add: The Owner will not pay for Material on Hand unless specified in a Special Provision of the Contract. 109.2.1. Materials On‐Hand. – Delete entire subsection. 109.2.2. Materials Stored Off‐Site. – Delete entire subsection. 109.5 MONTHLY ESTIMATE, PARTIAL PAYMENTS, RETAINAGE, FINAL ACCEPTANCE AND FINAL PAYMENT. Delete the first sentence of the first paragraph and Replace with: “If the last number of a contract number is odd, between the 25th day and the last day of each month, the Owner shall make an approximate estimate of the value of work done during the period under the specifications. If the last number of a contract is even, between the 10th day and the 15th day of the month, the Owner shall make an approximate estimate of the value of work done during the period under the specifications. The City Public Works Construction Inspector shall meet with a representative of the Contractor on the job site to measure and otherwise determine the quantity of each bid item completed since the last estimate period. In case an agreement cannot be reached, the quantities determined by the City Public Works Construction Inspector shall be used. Payment or partial payment of any item does not constitute final acceptance of the work. The City Public Works Construction Inspector shall prepare a draft monthly estimate for processing by the Owner for payment. The City Public Works Construction Inspector will forward a copy of this estimate to the Contractor along with any calculations or sketches used in calculating quantities. The Contractor is not required to submit an invoice or billing for monthly work completed.” In the first paragraph, second sentence, delete the words: “the 15th day of the month next following” and Replace with: “within 30 days”. Delete the third sentence in the first paragraph and Replace with: “Payment for material on hand will not be paid unless so specified in a Special Provision to this Contract.” Delete the entire second paragraph of this subsection and Replace with: Owner shall not be liable for interest on any late or delayed payment caused by any claim, dispute, discrepancy in the quantities, any failure to provide supporting documentation or other information required of the Contractor by the Owner or as a condition to payment under the Contract, or due to any payment the Owner has a right to withhold under the Contract. 109.5.4. Final Payment. Add at the end of the first paragraph: (4) Marked up set of plans showing all changes, revisions and alterations to the original plans.

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109.6 WIRE TRANSFERS Delete Entire Section 109.6 and Replace with: “The City of Mesquite has chosen the Paymode‐X™ service through Bank of America to make electronic payments to contractors, vendors and suppliers. The City of Mesquite recognizes the importance of expediting the payment process to Contractors vendors and suppliers. Our Accounts Payable department utilizes Paymode‐X to replace paper checks with electronic payments. We strongly encouraging our vendors and suppliers to enroll in Paymode‐X so that future payments are made electronically. Contract the assigned Owner’s Inspector to receive further information on how to process online enrollment to the Paymode‐X electronic payment system.”

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CONTRACTING WITH THE CITY OF MESQUITE

Updated: January 8, 2016

Conflict of Interest Questionnaire And Disclosure of Interested Parties (Form 1295)

YOU WILL BE REQUIRED TO COMPLY WITH THE FOLLOWING: Chapter 176 of the Texas Local Government Code is an ethics law that was initially enacted by the Texas Legislature with HB 914 in 2005 that requires disclosure of employment and business relationships local government officers may have with contractors, consultants and vendors who conduct business with local government entities. The law applies to any written contract for the sale or purchase of real property, goods or services. Further information regarding Texas Conflict of Interest laws and the Conflict of Interest Questionnaire (FORM CIQ) can be found at the Texas Ethics Commission web site at the following web address: https://www.ethics.state.tx.us/filinginfo/conflict_forms.htm PLEASE COMPLETE THE ATTACHED FORM CIQ AND SUBMIT WITH YOUR RESPONSE. Section 2252.908 of the Texas Government Code was enacted in 2015, by the Texas Legislature pursuant to HB 1295, which provides that a governmental entity may not enter into certain contracts with a business entity on or after January 1, 2016, unless the business entity submits a disclosure of interested parties (FORM 1295) to the governmental entity at the time the business entity submits the signed contract to the governmental entity. Further information regarding the disclosure of interested parties law and FORM 1295 can be found at the Texas Ethics Commission web site at the following web address:

https://www.ethics.state.tx.us/whatsnew/elf_info_form1295.htm PLEASE DO NOT COMPLETE FORM 1295 UNTIL YOU HAVE BEEN NOTIFIED OF CONTRACT AWARD AND REQUESTED TO ELECTRONICALLY FILE FORM 1295 WITH THE TEXAS ETHICS COMMISSION.

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Standards of Conduct The City of Mesquite conducts business with the public, business partners, vendors and contractors under a set of rules to ensure that all City officials and employees discharge their duties in a manner designed to promote public trust and confidence in our city. This code of ethics, titled Standards of Conduct, is taken from the Mesquite City Code, Chapter 2, Art. IV, Sec 2‐123. The City wants you to be aware of the rules that its employees are required to follow while performing their services to you. A violation of state or federal statutes may occur if these rules are broken. It is hoped that by outlining these rules for you, your experience in dealing with the City of Mesquite will be both rewarding and satisfactory.

Acceptance of Gifts or Gratuities Accepting gifts or gratuities by employees in consideration for the performance of their duties, or as an appreciation for their performance, is strictly prohibited.

Please do not offer employees any gift, loans or any other thing of value.

Employees may not receive any fee or compensation for their services from any source other than the City, so please don’t offer.

Please do not offer to buy meals for employees.

Employees may accept coffee, tea, soft drinks, snacks, etc. when attending meetings in your office.

Letters to supervisors for exceptional service by employees are always welcome.

Conflicts of Interest Employees are prohibited from engaging in any outside activities that conflict with, or have the appearance of conflicting with, the duties assigned to them in the employment of the City.

Please do not ask employees for any special favor or consideration that is not available to every other citizen.

Please do not ask an employee to disclose any information that is not available to every other citizen through normal public information channels.

Please do not offer to compensate the employee by offering to hire, or do business with any business entity of the employee or family member.

Do not ask employees to represent you or your company or make any recommendations on your behalf other than those that are a part of their official duties with the City.

Please do not ask employees to endorse the products or services of your company.

Please do not ask employees to hand out or post advertising materials.

Solicitation by City Employees Employees may not solicit gifts, loans, or any other items of value from people doing City business that will be used by them personally.

If you are asked to pay a fee for services that you believe is improper or illegal, please contact the City’s ethic’s officer at 972‐329‐8723. (payments should only be made to designated cashiers or clerks)

Employees are prohibited from taking retaliatory action against you for failing to comply with any request unless the request is within the scope of the employee’s official duties for the City.

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Use of City Equipment, Facilities and Resources Use of City equipment, facilities and resources is authorized only for City purposes and for those activities permitted by City ordinance and policy.

Please do not ask employees to use City equipment to run errands or perform tasks for your benefit.

Employees may not perform tasks, nor conduct any business not related to their official duties while on City time.

Your Rights and Expectations When dealing with employees of the City of Mesquite you have the right to honest, fair and impartial treatment. You may expect prompt, courteous and professional service from our employees who are expected to understand and practice good customer service skills. Employees are tasked to uphold the public trust through the ethical performance of their duties. We understand that the enforcement of regulatory guidelines and codes may sometimes be a cause for concern; however, you may rest assured that we are responsible to all of the citizens of Mesquite and our goal is to serve them to the best of our ability. Should you have any concerns or questions concerning this information or the conduct of any of our employees please contact the City’s ethics officer at 972‐329‐8723. All calls to the City’s ethics officer are confidential and your name (or any other identifying information) will not be disclosed. Cliff Keheley City Manager

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Non‐Exclusion Affidavit for General Contractors

Federal, state, and local government agencies, not‐profits, and other organizations that use federal money to fund all or part of any program or project are required to follow specific requirements regarding the use of such federal funds. One of these requirements is that no contract, subcontract, grant, financial assistance, or other forms of assistance provided using federal funds may be awarded to individuals or entities that have been suspended, debarred, or otherwise excluded from participation in federally funded programs. The U.S. federal government maintains a Web site known as the “System for Award Management” (SAM) at www.sam.gov. One of the purposes of the SAM Web site is to provide a comprehensive list of all individuals, firms, and other entities that have been suspended, debarred, or otherwise excluded from participation in federally funded contracts, subcontracts, grants, etc. SAM provides a simple means of helping government, non‐profit agencies, and other organizations ensure that they do not award federally‐funded grants, contracts, subcontracts, or other financial or non‐financial benefits to any individual, firm, or other entity that has been excluded by any agency from participation in such federally funded activities.

I, (Contractor Representative), hereby certify that neither I

nor (Name of the company or organization I represent)

nor any subcontractors that I or said company may employ to work on any federally funded activity have been suspended,

debarred, or otherwise excluded by any federal agency from participation in any federally funded activity. I further

acknowledge my understanding that, before entering into a contract with me or with the company or organization I

represent, City of Mesquite staff will perform a search on www.sam.gov to verify whether I, the organization I represent,

or any subcontractors I may employ to work on any federally funded activity, have been excluded from participation in

any federally funded activity.

Signature of Contractor Representative Date

Sworn to and subscribed before me this day of , 20

Notary Public in and for ____________ County, _____________ (Insert State Name)

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INSURANCE A. AMOUNTS OF INSURANCE

Contractor agrees to provide and to maintain the following types and amounts of insurance, for the term of this Contract. Type Amount

1. Worker’s Compensation ‐ Statutory Limits and $100,000 Employer’s Liability per occurrence 2. Commercial (Public Liability), Bodily Injury: including but not limited to: $500,000 per person $1,000,000 per occurrence and A. Premises/Operations B. Independent Contractors C. Personal Injury Property Damage: D. Products/Complete Operations $500,000 per occurrence E. Contractual Liability (insuring above indemnity provisions) with general aggregate of $1,000,000 3. Business (Commercial) Combined Single Limit/ Automobile Policy: $500,000 The preceding amounts notwithstanding, the City reserves the right to increase the minimum required insurance to be effective thirty (30) days after notice is sent to the address provided herein. The Contractor may pass through to the City all costs for obtaining the increase in the insurance coverage.

B. OTHER INSURANCE REQUIREMENTS The Contractor understands that it is its sole responsibility to provide the required Certificate and that failure to comply within 10 days after notice of award and according to the requirements of this article shall be a cause for termination of this Contract.

For any pesticide spraying performed, the City of Mesquite will require the successful Proposer to carry Pollution Liability Insurance and Environmental Impairment Liability Insurance.

Insurance required herein shall be issued by a company or companies of sound and adequate financial responsibility and authorized to do business in the State of Texas. All policies shall be subject to examination and approval by the City Attorney’s office for their adequacy as to form, content, form of protection, and providing company.

Insurance required by this Contract for the City as additional insured shall be primary insurance and not contributing with any other insurance available to City, under any third party liability policy.

The Contractor further agrees that with respect to the above required insurances, the City shall:

1. Be named as additional insured/or an insured, on all required insurance except workers’ compensation. Blanket Endorsements are acceptable in meeting this requirement if copies of the endorsements are provided along with the certificate. If using a form that has specific boxes labeled for additional insured, checking those specific boxes is acceptable in meeting this requirement as well.

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2. Be provided with a waiver of subrogation, in favor of the City on all required insurance. Blanket Endorsements are acceptable in meeting this requirement if copies of the endorsements are provided along with the certificate. If using a form that has specific boxes labeled for waiver of subrogation, checking those specific boxes is acceptable in meeting this requirement as well.

3. Be provided with an unconditional 30 days’ advance written notice of cancellation or material change. 4. Prior to execution of this Agreement, proof of insurance shall be provided through the office of the City Secretary

with either their original Certificate of Insurance or their insurance policy evidencing the above requirements. Thereafter, new certificates or copies of the policies shall be furnished prior to the expiration date of any prior certificate.

C. ADDITIONAL WORKER’S COMPENSATION INSURANCE REQUIREMENTS

1. Definitions: Certificate of coverage (“certificate”) A copy of a certificate of insurance, a certificate of authority to self‐insure issued

by the commission, or a coverage agreement (TWCC‐81, TWCC‐82, TWCC‐83, TWCC‐84), showing statutory Worker’s Compensation insurance coverage for the person’s or entity’s employees providing services on a project, for the duration of the project.

Duration of the project ‐ includes the time from the beginning of the work on the project until the contractors’/person’s

work on the project has been completed and accepted by the governmental entity.

Persons providing services on the project (subcontractor” in 406.096) ‐ includes all persons or entitles performing all or part of the services the contractor has undertaken to perform on the project, regardless of whether that person contracted directly with the contractor and regardless of whether that person has employees. This includes, without limitation, independent contractors, subcontractors, leasing companies, motor carriers, owner‐operators, employees of any such entity or employees of any entity which furnishes persons to provide services on the project. “Services” include, without limitation, providing, hauling, or other service related to a project. “Services” does not include activities unrelated to the project, such as food/beverage vendors, office supply deliveries, and delivery of portable toilets.

2. The contractor shall provide coverage, based on proper reporting of classification codes and payroll amounts and filing

of any coverage agreements. Which meets the statutory requirements of Texas Labor Code, Section 401.011 (44) for all employees of the contractor providing services on the project, for the duration of the project.

3. The Contractor must provide a certificate of coverage to the governmental entity prior to being awarded the contract.

4. If the coverage period shown on the contractor’s current certificate of coverage ends during the duration of the project, the contractor must, prior to the end of the coverage period, file a new certificate of coverage with the governmental entity showing that coverage has been extended.

5. The contract shall obtain from each person providing services on a project, and provide to the governmental entity: (a) a certificate of coverage, prior to that person beginning work on the project, so the governmental entity will

have on file certificates of coverage for all persons providing services on the project; and

(b) no later than seven days after receipt by the contractor, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project.

6. The Contractor shall retain all required certificates of coverage for the duration of the project and for one year thereafter.

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REQUEST FOR QUALIFICATIONS and REQUEST FOR PROPOSALS (RFQ/RFP) NO. 2017‐021 FOR DESIGN – BUILD FOR CITY LAKE AQUATIC CENTER IMPROVEMENTS

City of Mesquite, Texas RFQ/RFP No.: 2017‐021

SECTION 1 – GENERAL INFORMATION & REQUIREMENTS

1.1 GENERAL INFORMATION City of Mesquite (hereinafter “MESQUITE” or “Owner”) is conducting a Two‐Step solicitation to select a Design – Build Contractor (“Contractor”) for the Improvements to City Lake Aquatic Center located 200 Parkview Street, Mesquite TX 75149 (“Project”), in accordance with the terms, conditions, and requirements set forth in this Request for Qualifications/Request for Proposals (RFQ/RFP).

1.1.1 Each respondent shall submit its response (Qualifications) to the Request for Qualifications (“RFQ”) in

a sealed envelope. This RFQ provides the information necessary to prepare and submit. MESQUITE will rank the responses in the order that they provide the “most qualified” for the MESQUITE based on the published evaluation criteria.

1.1.2 If MESQUITE deems it necessary, a short list of the “most” qualified respondents will be requested to

attend an interview with MESQUITE to confirm their Qualifications and answer additional questions. MESQUITE may choose to interview no more than five respondents, at its option. MESQUITE will then rank these “most qualified” respondents based on the published evaluation criteria.

1.1.3 The highest ranked respondents (no more than five 5), will be asked to submit “Proposals” to a Request for Proposal (RFP).

1.1.4 MESQUITE will then rank the proposals in order to identify a “best value.”

1.1.5 The contract terms will be negotiated with the respondent identified as “best value,” until an agreement is reached or negotiations are terminated.

1.1.6 The negotiation will result in a recommendation by the selection committee to the MESQUITE City

Council (hereinafter “Council”) of the highest ranked respondent and request to award. 1.2 DEFINITIONS AND SPECIAL CONCERNS:

1.2.1 Design – Build Contractor: A “Design – Build Contractor” is a sole proprietorship, partnership, corporation, or other legal entity that assumes the risk for construction, rehabilitation, alteration, or repairs of a facility at the contracted price as a general contractor and provides consultation to MESQUITE regarding construction during and after the design of the facility.

1.2.2 Compliance with Texas Government Code Chapter 2258 (Prevailing Wage Rates): The City has adopted

Ordinance No. 2014‐11, requiring a prevailing wage contractual requirement for the construction of a public work including a building, highway, road excavation and repair work or other project development or improvements, paid for in whole or in part from public funds, without regard to whether the work is done under public supervision or direction. By execution of an agreement with the City for public work, the Construction Manager at Risk will certify that it has read Texas Government Code§ 2258 et seq. (as amended) and agrees to perform the contract under the terms and conditions provided by and in conformity with Texas Government Code § 2258 et seq. (as amended). The Contractor will agree that failure to conform performance of this contract to Texas Government Code§ 2258 et seq. (as amended),

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whether statutorily applicable or not, will constitute a material breach of the agreement. Pursuant to section 2258.001 MESQUITE has elected to utilize the U.S. Department of Labor Davis‐Bacon wage rates for Dallas County as the minimum prevailing wage rates which will be paid to any non‐salaried person employed on this project. The selected Contractor will be required to maintain certified payrolls which will be available for audit by MESQUITE, and will be responsible for any fines associated with non‐compliance.

1.3 OWNER’S OBJECTIVES: MESQUITE is planning improvements to the City‐owned City Lake Aquatic Center

located at 200 Parkview Street, Mesquite, TX 75149.

An improvement plan has been prepared by Staff which indicates number facility improvements including a man‐made rock water wall as illustrated in the Design Criteria and Specifications. These criteria are intended to be conceptual and shall serve as a design requirements and subject to refinement. Staff will work with the selected Contractor to develop a detailed project program for the PROJECT including not necessarily limited to site plan, building plans, elevations, building sections, technical specifications, and material selections. Mesquite’s steering committee for the Project will receive and evaluate proposals to this Request, may interview a short list of highly qualified respondents, identify the best‐qualified respondent, negotiate the contract amount and recommend award to the Mesquite City Council. Owner’s Contract Price Limit: $225,000 Preliminary Design Package: Maximum of 30 days after Contract award Construction Documents for permit: (TBD) Substantial Completion: May 1, 2017 Final Completion and contract close‐out 30 days after substantial completion The successful respondent shall provide complete and functional systems, including all controls, connections, modifications, and other required material and labor while protecting all existing MESQUITE property. The scope of work for this Project will be priced and presented to the MESQUITE City Council for approval with the Design ‐ Build Proposal. The scope of work is further defined in Section 2 of this RFQ/RFP.

1.4 PUBLIC INFORMATION: All information, documentation, and other materials submitted in response to this

solicitation are considered non‐confidential and/or non‐proprietary and are subject to public disclosure under the Texas Public Information Act (Texas Government Code, Chapter 552.001, et seq.) after the solicitation is completed.

1.4.1 MESQUITE strictly complies with all statutes, court decisions, and opinions of the Texas Attorney

General with respect to disclosure of RFQ/RFP information. 1.5 TYPE OF CONTRACT: Any contract resulting from this solicitation will be in the form of MESQUITE’s Design –

Build Contract for Park Projects, a copy of which is attached to this RFQ/RFP. 1.6 CLARIFICATIONS AND INTERPRETATIONS: Any clarifications or interpretations of this RFQ/RFP that materially

affect or change its requirements will be issued by MESQUITE as an addendum. All such addenda issued by MESQUITE before the responses are due as part of the RFQ, and respondents shall acknowledge receipt of and incorporate each addendum in its response.

1.6.1 Respondents shall consider only those clarifications and interpretations that MESQUITE issues by

addenda two (2) days prior to the submittal deadline. Interpretations or clarifications in any other form, including oral statements, will not be binding on MESQUITE and should not be relied on in preparing responses.

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SUBMISSION OF PROPOSALS:

1.6.2 DEADLINE AND LOCATION: MESQUITE will receive Qualifications until Thursday, December 15, 2016, up to 2:00 p.m. local time at the City of Mesquite Purchasing Department. Responses shall be addressed to:

Ryan Williams, Manager of Purchasing

City of Mesquite ‐ Purchasing Department 1515, Galloway Avenue, Mesquite Texas 75149

1.6.3 Pre‐Proposal Conference: Monday, December 5, 2016, at 10:00 a.m. local time at City Lake Aquatic

Center, located at 200 Parkview Street, Mesquite, Texas 75149.

1.6.4 If MESQUITE elects to interview any of the respondents, interviews will be held Monday, December 19, 2016. Respondents shall be prepared to interview during the date mentioned above; an Interview Structure will be posted with the Short List. Each respondent will have approximately one hour to present its Proposal and answer questions. The meeting will be a private meeting with the selection committee and respondent. The one‐hour maximum presentation shall contain a PowerPoint presentation explaining why the firm is most suited to perform this work. The one‐hour presentation shall also require an oral presentation describing the firm’s qualifications, experience with similar work and approach to the project and shall include at least one officer of the company in attendance and the Project Lead. In addition, the presenter shall allow a minimum of 20 minutes for a Q&A session.

1.6.5 Submit one (1) original and five (5) complete copies of the entire response with two (2) complete

consolidated electronic copy of files in PDF format on a flash drive. 1.6.6 Late responses will be returned unopened to the respondent. 1.6.7 The Owner will not acknowledge or accept responses that are delivered by telephone, facsimile (fax),

or electronic mail (e‐mail). 1.6.8 Properly submitted responses will not be returned to respondents.

1.6.9 Materials shall be enclosed in a sealed envelope (or box or other sealed container) addressed as noted

above. The package shall clearly identify the RFQ/RFP number, the submittal deadline, and the name and return address of the respondent.

1.8 POINTS‐OF‐CONTACT: Any questions or concerns regarding this RFQ/RFP shall be directed to:

Purchasing Division City of Mesquite PO Box 850137 Mesquite, TX 75185‐0137 972‐216‐6201 Email: [email protected]

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1.9 INQUIRIES AND INTERPRETATIONS: Inquiries regarding this RFQ/RFP must be in written form only, and must

be received by 2:00 p.m. local time on Friday, December 9, 2016. Inquiries must be emailed. All inquiries must include contact person, address and email address. Responses to inquiries will be posted online only. Inquiries must be submitted to the contacts identified in Section 1.8 above.

Responses to inquiries which materially interpret or change this RFQ/RFP will be issued by addendum which can only be viewed at www.cityofmesquite.com/Purchasing. All addenda issued by MESQUITE prior to the Response submission deadline shall be considered part of the RFQ/RFP, and respondents are required to consider and acknowledge receipt of each addendum in their Proposal.

1.10 EVALUATION OF RESPONSES: The evaluation of the responses shall be based on the criteria as described in this

RFQ/RFP. All properly submitted responses will be reviewed, evaluated, and ranked by MESQUITE. The award will be based on a Best Value Determination. All proposals received shall be evaluated based on the best value for MESQUITE. Best value shall be determined any relevant criteria specifically listed in the solicitation and by considering all or part of the criteria listed below:

a. The quality / reputation of the Respondent’s goods or services.

b. Experience, resources, past performance on similar projects.

c. Procedures for budget control and compliance

d. Strategy for expedited delivery method

e. The extent to which the goods or services meet the City’s needs.

f. Bidder’s past relationship with the MESQUITE. All vendors shall be evaluated on their past performance and prior dealings with the MESQUITE to include, but not limited to, failure to meet specifications, poor quality, poor workmanship, and late delivery.

1.11 NO EX‐PARTE COMMUNICATIONS DURING COMPETITIVE BIDDING PERIOD: To ensure the proper and fair

evaluation of a response, the City prohibits ex parte communication (e.g., unsolicited) initiated by the proposed Contractor to a City official or employee evaluating or considering the responses prior to the time a formal decision has been made. Questions and other communication from vendors will be permissible until 5:00 pm on the day specified as the deadline for questions. Any communication between responder and the City after the deadline for questions will be initiated by the appropriate City official or employee in order to obtain information or clarification needed to develop a proper and accurate evaluation of the response. Ex parte communication may be grounds for disqualifying the offending responder from consideration or award of the solicitation then in evaluation, or any future solicitation.

1.12 SCHEDULE:

Issuance of RFQ/RFP November 23, 2016 Advertise 1st week November 23, 2016 Advertise 2nd week December 1, 2016 Pre‐Proposal Conference December 5, 2016 Deadline for questions December 9, 2016 Responses to questions December 12, 2016 Step 1, Qualification responses due December 15, 2016

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Interviews if Necessary December 19, 2016 Request Step 2, Proposals from finalists December 19, 2016 Step 2, Proposals due January 10, 2017 Notify selected team and start negotiations January 12, 2017 Complete negotiations January 26, 2017 City Council Approval February 6, 2017 Complete contract execution February 20, 2017 Substantial Completion May 1, 2017 Final Completion and Contract Close Out Within 30 days after Substantial Completion

1.13 OWNER’S RESERVATION OF RIGHTS: MESQUITE may evaluate the responses based on the anticipated completion of all or any portion of the Project. MESQUITE reserves the right to divide the Project into multiple parts, and to reject any and all responses and temporarily or permanently abandon the Project. MESQUITE makes no representations, written or oral, that it will enter into any form of agreement with any respondent to this RFQ/RFP for any project and no such representation is intended or should be construed by the issuance of this RFQ/RFP.

1.14 ACCEPTANCE OF EVALUATION METHODOLOGY: By submitting its response to this RFQ/RFP, respondent accepts

the evaluation process and acknowledges and accepts that determination of the “best value” firm will require subjective judgments by MESQUITE.

1.15 NO REIMBURSEMENT FOR COSTS: Respondent acknowledges and accepts that any costs incurred from the

respondent’s participation in this RFQ/RFP shall be at the sole risk and responsibility of the respondent.

1.16 ELIGIBLE RESPONDENTS: Only individual firms or lawfully formed formal business organizations may submit a Proposal, unless the respondent expressly states in writing in the Proposal that, if awarded a contract, it will lawfully form a formal business organization in a timely manner so as not to delay the Project. Any informal associations will be disqualified. This does not preclude a respondent from engaging consultants by contract. MESQUITE will contract only with individual firms or formal organizations such as a) joint ventures, b) limited liability corporations, c) partnerships, or d) corporations authorized to do business in the State of Texas.

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SECTION 2 – SPECIFICATIONS FOR THE RFP

2.1 GENERAL: MESQUITE requests responses from qualified and experienced firms for the Project meeting the following minimum specifications stated in this Section.

2.2 BUDGET SPECIFICATIONS: Owner’s Contract Price Limit for the Design – Build for City Lake Aquatic Center

Improvements is not to exceed $225,000, for the Project. 2.3 SCOPE OF WORK:

2.3.1 Included in the scope of work requirements are the following phases:

2.3.1.1 Preliminary Design 2.3.1.2 Bidding/Negotiation/Award of Sub Contracts 2.3.1.3 Permitting, as required 2.3.1.4 Construction Administration/Management 2.3.1.5 Project Closeout/Commissioning 2.3.1.6 Warranty Review

2.3.2. The construction scope of work will generally be:

2.3.2.1 All necessary onsite and offsite utilities. 2.3.2.2 All civil, structural, architectural, mechanical, electrical, plumbing, IT/AV/Security and landscaping

construction required by the Design Criteria and subsequent approved plans and specifications. 2.3.2.3 Compliance with all codes, rules and regulations as required by the City of Mesquite and all

Authorities Having Jurisdiction. The Contractor shall provide complete and functional systems, including all controls, connections, and other required material and labor while protecting all affected MESQUITE property.

2.4 CONTRACTOR RESPONSIBILITY: The Contractor will have the primary responsibility for construction to:

2.4.1 Maintain a staff of properly trained and experienced personnel to ensure satisfactory performance under this Contract;

2.4.2 Assign to Mesquite a designated single point of contact representative who will be responsible for the

coordination and administration of MESQUITE's main requirements; 2.4.3 The Contractor will submit all design elements for required permitting to the City of Mesquite before

commencing construction, and be responsible for all related fees; 2.4.4 The Contractor will submit all necessary submittals to MESQUITE for selection and approval of materials,

equipment and component systems used on the project; 2.4.5 Attend meeting with MESQUITE representatives as required throughout the project. 2.4.6 Provide information and recommendations on building systems, equipment, and construction feasibility;

selection and availability of materials and labor; and time requirements for installation and construction; 2.4.7 Implement and maintain a critical path method schedule (“CPM”) schedule, which coordinates and

integrates activities, including the construction services, subcontractors and suppliers and MESQUITE City Council meetings for required approvals;

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2.4.8 Provide construction management, administration, quality control, safety and supervision during construction of the project;

2.4.9 Provide all commissioning and Test and Balance reports for all systems; 2.4.10 The Contractor shall supply a signed and sealed set of as‐built construction documents in both printed

and electronic form for the described Project to MESQUITE at the conclusion of construction; and; 2.4.11 The Contractor shall supply product/equipment Operation and Maintenance Manuals for the described

Project to MESQUITE at the conclusion of construction. 2.5 BASIS OF COMPENSATION: The Contractor will be required to negotiate a Lump Sum Price (Contract Price) after

selection which will be included in the contract award. Specifically included in this Contract Amount will be the following:

2.5.1 All required fees for Design, engineering, surveying, soils testing, material testing; 2.5.2 Permitting from federal, state, county, local and any other applicable governing jurisdictions; 2.5.3 General conditions, overhead expenses and profit; 2.5.4 Construction sub‐trade packages; 2.5.5 Construction inspection, quality control and quality assurance; 2.5.6 Construction contingencies / allowances; 2.5.7 Complete field “as‐built” documentation and final electronic “record” drawings; and Start‐up,

commissioning and testing including Test and Balance, and staff training in the use of all systems.

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SECTION 3 – STEP 1 ‐ EVALUATION CRITERIA Respondents shall carefully read the information contained in the following criteria and submit a complete response to all questions in Section 2 formatted as directed in Section 3. Incomplete responses will be considered non‐responsive. The criteria for evaluation of responses will be based on the factors summarized below.

3.1 Prime Respondent’s Demonstrated Capability and Financial Resources to Perform the Work

20%

3.2 Prime’s Demonstrated Experience and Past Performance on Similar Projects 15%

3.3 Other members of the Team’s Demonstrated Experience and Past Performance on Similar Projects

25%

3.4 Proposed Project Organization Chart for this Project 25%

3.5 Other Appropriate factors submitted in the proposal to the RFQ/RFP 10%

3.6 Certification that each architect or engineer on the team was selected based on demonstrated competence and qualifications in compliance with Section 2254.004 of the Texas Govt. Code

5%

Total 100%

3.1 PRIME RESPONDENT’S DEMONSTRATED CAPABILITY AND FINANCIAL RESOURCES TO PERFORM THE WORK

3.1.1 Each respondent shall provide the legal name of the company and address of the office that would be providing the service.

3.1.2 Each respondent shall provide copies of Dunn and Bradstreet reports, bank and supplier credit references, or other documentation sufficient to demonstrate its financial capability to deliver this project.

3.1.3 Is your company currently for sale or involved in any transaction to expand or to become acquired by

another business entity? If yes, please explain the impact both in organizational and directional terms.

3.1.4 Provide any details of all past or pending litigation or claims filed against your company that would affect your company's performance under a contract with MESQUITE.

3.1.5 Is your company currently in default on any loan agreement or financing agreement with any bank, financial institution or other entity? If yes, specify dates(s), details circumstances and prospects for resolution.

3.1.6 Does any relationship exist whether by family relative, business associate, financial agreement or any other relationship between your company and any MESQUITE employee? If yes, please explain.

3.1.7 A statement certifying that the respondent is not in arrears in payment of any obligations to MESQUITE or any other governmental entity, including, without limitation, property or sales taxes, fees, or utility charges.

3.2 PRIME’S DEMONSTRATED EXPERIENCE AND PAST PERFORMANCE ON SIMILAR PROJECTS

3.2.1 Prime respondent shall provide a list with a maximum of five (5) projects for which your firm has provided Design – Build or construction services which are most related to MESQUITE and municipal government projects.

3.2.2 For each of the referenced projects, provide the following information: project name, project type,

client(s) name, client type(s); construction cost (original and final cost); original scheduled final

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completion date, actual or estimated final completion date; Owner’s contact person(s) and telephone number(s), and the name(s) and telephone number(s) of the project architect(s) and engineer(s).

3.2.3 List all previous experience and projects your firm has had with MESQUITE. Provide the experience or

project dates, project delivery method utilized, and a brief description of the experience or project.

3.3 OTHER MEMBERSOF THE TEAM’S DEMONSTRATED EXPERIENCE AND PAST PERFORMANCE ON SIMILAR PROJECTS

3.3.1 Each respondent shall provide a list with a maximum of five (5) projects for which your firm has provided

Design – Build or construction services which are most related to MESQUITE and municipal government projects.

3.3.2 For each of the referenced projects, provide the following information: project name, project type,

client(s) name, client type(s); construction cost (original and final cost); original scheduled final completion date, actual or estimated final completion date; Owner’s contact person(s) and telephone number(s), and the name(s) and telephone number(s) of the project architect(s) and engineer(s).

3.3.3 List all previous experience and projects your firm has had with MESQUITE. Provide the experience or

project dates, project delivery method utilized, and a brief description of the experience or project. 3.4 PROPOSED PROJECT ORGANIZATION CHART FOR THIS PROJECT

3.4.1 Provide an organizational chart confirming in graphic form the proposed Project assignments, lines of authority and communication for each member involved in this Project.

3.4.2 Thoroughness of structure to provide required skills and services. 3.5 OTHER APPROPRIATE FACTORS SUBMITTED IN THE PROPOSAL TO THE RFQ/RFP

3.5.1 Value of other information related to qualifications of the Prime to successfully execute and deliver the intentions of the project.

3.5.2 Value of other information related to qualifications of the other members of the Team to successfully

execute and deliver the intentions of the project.

3.6 Certification that each architect or engineer on the team was selected based on demonstrated competence and qualifications in compliance with Section 2254.004 of the Texas Govt. Code 3.6.1 Describe the selection process and how it complies.

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SECTION 4 – FORMAT OF STEP 1 QUALIFICATIONS 4.1 GENERAL INSTRUCTIONS:

4.1.1 Responses shall be prepared SIMPLY AND ECONOMICALLY, providing a straightforward, CONCISE description of the respondent's ability to meet the requirements of this RFQ/RFP. Emphasis shall be on the quality, completeness, clarity of content, responsiveness to the requirements, and an understanding of MESQUITE's needs.

4.1.2 Thoroughness of structure to provide required skills and services. 4.1.3 Responses shall be a MAXIMUM OF THIRTY‐FIVE (35) PRINTED PAGES. The cover, table of contents,

divider sheets, and Execution of Offer, do not count towards maximum printed pages allotment. 4.1.4 Respondents shall carefully read the information contained in this RFQ/RFP and submit a complete

response to all requirements and questions as directed. Incomplete Proposals will be considered non‐responsive and subject to rejection.

4.1.5 Responses and any other information submitted by respondents in response to this RFQ/RFP shall

become the property of MESQUITE. 4.1.6 Responses that are qualified with conditional clauses, alternations, items not called for in the RFQ/RFP

documents, or irregularities of any kind are subject to rejection by MESQUITE at its option. 4.1.7 The MESQUITE makes no representations of any kind that an award will be made as a result of this

RFQ/RFP. MESQUITE reserves the right to accept or reject any or all responses, waive any formalities or minor technical inconsistencies, or delete any item/requirements from this RFQ/RFP when deemed to be in MESQUITE's best interest.

4.1.8 Respondent’s Proposal shall include a cover, table of contents, divider sheets, and responses to each of

the criteria identified in Section 2 of the RFQ/RFP. Responses shall consist of answers to questions identified in Section 2 of the RFQ/RFP. It is not necessary to repeat the question in the responses; however, it is essential to reference the question number with the corresponding answer.

4.1.9 Each respondent must complete, sign and return Execution of Offer, as part of its response. The

Execution of Offer must be signed by an officer of the respondent's company authorized to bind the respondent to the statements and representations in the response. Failure to sign and return this form will subject a respondent’s Proposal to disqualification.

4.1.10 Respondents wishing to submit a “No‐Response” are requested to return the first page of the Execution

of Offer (ref. General Clauses and Conditions, Item No. 2, page 3). The returned form should indicate the respondent’s name and include the words “No‐Response” in the right‐hand column.

4.1.11 Failure to comply with all requirements contained in this Request for Qualifications may result in the

rejection of the response. 4.2 PAGE SIZE, BINDING, DIVIDERS & TABS:

4.2.1 Responses shall be printed on letter‐size (8‐1/2” x 11”) paper and assembled with spiral‐ type bindings or staples. 11” x 17” paper may be used, if it is folded and bound into the 8½” x 11” response. DO NOT USE METAL‐RING HARD COVER BINDERS.

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4.2.2 Additional attachments shall NOT be included with the response. Only the responses provided by the Respondent to the criteria identified in Section 3 of this RFQ/RFP will be used by MESQUITE for evaluation.

4.2.3 Separate and identify each criteria response to Section 3 of this RFQ/RFP by use of a divider sheet with

an integral tab for ready reference. The last tab should contain a completed and executed copy of the Execution of Offer Letter, a completed and executed copy of the Felony Conviction Notification as well as certifications from the firm’s insurance and bonding agents.

4.3 TABLE OF CONTENTS:

4.3.1 Submittals shall include a “Table of Contents” and give page numbers for each part the Proposal. 4.4 PAGINATION:

4.4.1 Number all pages of the submittal sequentially using Arabic numerals (1, 2, 3, etc.) or by section (1‐1, 1‐2, etc.).

4.5 ELECTRONIC MEDIA:

4.5.1 Two (2) electronic media copy of the presentation in Adobe PDF format in either a flash drive or CD form shall be submitted.

4.6 BONDS AND INSURANCE INSTRUCTIONS:

4.6.1 Attach a letter of intent from a bonding agent indicating the respondent’s bond ability for the Project.

4.6.2 Attach a sample certificate of insurance or a letter of intent from an insurance company indicating the insurability of the respondent for the described Project.

4.6.3 The surety and insurance companies shall each acknowledge that the firm may be covered for the

construction value of the Project.

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SECTION 5 – STEP 2 EVALUATION CRITERIA Respondents shall carefully read the information contained in the following criteria and submit a complete response to all questions in Section 4 formatted as directed in Section 5. Incomplete responses will be considered non‐responsive. The criteria for evaluation of Proposals will be based on the factors summarized below.

5.1 Team’s Experience 15%

5.2 Pricing Factors 30%

5.3 Understanding of project and delivery strategy 20%

5.4 Quality Assurance/Quality Control program 15%

5.5 Project delivery schedule 20%

Total 100%

5.1 TEAM’S EXPERIENCE 5.1.1 Experience in similar/relevant projects.

5.1.2 Past performance in similar/relevant projects. 5.1.3 Technical competence. 5.1.4 Reputation. 5.1.5 Past Experience working for the City of Mesquite.

5.2 PRICING FACTORS

5.2.1 The degree to which Respondent’s Contract Price is less than the amount of the Owner’s Contract Price Limit.

5.2.2 The Costing Methodology of the Respondent (policies on subcontractor markup, definition of general

conditions, range of costs for general conditions, policies on retainage, policies on contingencies, discount for prompt payment, and expected staffing for administrative duties.

5.2.3 Proposed profit. 5.2.4 Completed Pricing Line Item Sheet and respective pricing assigned to each component.

5.3 UNDERSTANDING OF PROJECT AND DELIVERY STRATEGY

5.3.1 The extent to which the respondent’s proposal complies with requirements of The RFQ/RFP. 5.3.2 Feasibility of implementing Project as proposed.

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5.3.3 The extend the proposal satisfies the scope and intent of the project. 5.3.4 The Team’s understanding of the project objectives.

5.4 QUALITY ASSURANCE/QUALITY CONTROL PROGRAM

5.4.1 The Team’s program for assuring and controlling quality and accuracy during design/engineering

process. 5.4.2 The Team’s program and approach to assuring and controlling quality during construction as well as

approach to correcting deficiencies or errors. 5.4.3 The Team’s response approach to warranty work.

5.5 PROJECT DELIVERY SCHEDULE

5.5.1 Feasibility and appropriateness of the Team’s overall project delivery strategy to delivery project objectives.

5.5.2 Ability to comply with specified project deadlines.

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SECTION 6 – FORMAT OF STEP 2 PROPOSALS

6.1 GENERAL INSTRUCTIONS: 6.1.1 Proposals shall be prepared SIMPLY AND ECONOMICALLY, providing a straightforward, CONCISE

description of the respondent's ability to meet the requirements of this RFQ/RFP. Emphasis shall be on the quality, completeness, clarity of content, responsiveness to the requirements, and an understanding of MESQUITE's needs.

6.1.2 Proposals shall be a MAXIMUM OF THIRTY‐FIVE (35) PRINTED PAGES. The cover, Table of contents,

divider sheets and Execution of Offer, do not count towards maximum printed pages allotment. 6.1.3 Respondents shall carefully read the information contained in this RFQ/RFP and submit a complete

response to all requirements and questions as directed. Incomplete Proposals will be considered non‐responsive and subject to rejection.

6.1.4 Proposals and any other information submitted by respondents in response to RFQ/RFP shall become

the property of MESQUITE. 6.1.5 Proposals that are qualified with conditional clauses, alterations, items not called for in the RFQ/RFP

documents, or irregularities of any kind are subject to rejection by MESQUITE, at its option. 6.1.6 The MESQUITE makes no representations of any kind that an award will be made as a result of this

RFQ/RFP. MESQUITE reserves the right to accept or reject any or all Proposals, waive any formalities or minor technical inconsistencies, or delete any item/requirements from this RFQ/RFP when deemed to be in MESQUITE's best interest.

6.1.7 Respondent’s Proposal shall include a cover, table of contents, divider sheets, and responses to each of

the criteria identified in Section 2 of the RFQ/RFP. Proposals shall consist of answers to questions identified in Section 2 of the RFQ/RFP. It is not necessary to repeat the question in the Proposals; however, it is essential to reference the question number with the corresponding answer.

6.1.8 Each respondent must complete, sign and return Execution of Offer, as part of its Proposal. The

Execution of Offer must be signed by an officer of the respondent's company authorized to bind the respondent to the statements and representations in the Proposal. Failure to sign and return this form will subject a respondent’s Proposal to disqualification.

6.1.9 Respondents wishing to submit a “No‐Response” are requested to return the first page of the Execution

of Offer (ref. General Clauses and Conditions, Item No. 2 on page 3). The returned form should indicate the respondent’s name and include the words “No‐Response” in the right‐hand column.

6.1.10 Failure to comply with all requirements contained in this Request for Qualifications may result in the

rejection of the Proposals. 6.2 PAGE SIZE, BINDING, DIVIDERS & TABS:

6.2.1 Proposals shall be printed on letter‐size (8‐1/2” x 11”) paper and assembled with spiral‐ type bindings or staples. 11” x 17” paper may be used, if it is folded and bound into the 8½” x 11” Proposal. DO NOT USE METAL‐RING HARD COVER BINDERS.

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6.2.2 Additional attachments shall NOT be included with the Proposals. Only the responses provided by the Respondent to the criteria identified in Section 5 of this RFQ/RFP will be used by MESQUITE for evaluation.

6.2.3 Separate and identify each criteria response to Section 5 of this RFQ/RFP by use of a divider sheet with

an integral tab for ready reference. The last tab should contain a completed and executed copy of the Execution of Offer Letter, a completed and executed copy of the Felony Conviction Notification as well as certifications from the firm’s insurance and bonding agents.

6.3 TABLE OF CONTENTS:

6.3.1 Submittals shall include a “Table of Contents” and give page numbers for each part of the proposal.

6.4 PAGINATION: 6.4.1 Number all pages of the submittal sequentially using Arabic numbers (1,2,3, etc.) or by section (1‐2, 1‐2,

etc.).

6.5 ELECTRONIC MEDIA:

6.5.1 Two (2) electronic media copies of the presentation in Adobe PDF format in either a flash drive or CD form shall be submitted.

6.6 BONDS AND INSURANCE INSTRUCTIONS:

6.6.1 Attach a letter of intent from a bonding agent indicating the respondent’s bond ability for the project. 6.6.2 Attach a sample certificate of insurance or a letter of intent from an insurance company indicating the

insurability of the respondent for the described project. 6.6.3 The surety and insurance companies shall each acknowledge that the firm may be covered for the

construction value of the project.

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PRICING LINE ITEM SHEET Water Wall Demolition $_______________________ Foundation $_______________________ Structure $_______________________ Surface treatment $_______________________ Electrical $_______________________ Plumbing $_______________________ Alt. 1: Add stair surface treatment $_______________________ Alt 2: Reduced Size $_______________________ CONSTRUCTION MANAGEMENT FEE $_______________________ CONTRACTOR’S CONTINGENCY (________%) $_______________________ P & P BONDS $_______________________ SUBTOTAL $______________________ CONSTRUCTION PROFIT (______%) $______________________ Proposed Fixed Project Construction Budget $______________________ Architect fees $______________________ Engineer fees $______________________ PROPOSED CONTRACT PRICE $______________________

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Scoring scale, shall apply to both Part 1 and Part 2 The responses will be scored by a team of Evaluators using the following point scale and respective descriptions: Points Description

0 Nothing provided in response 1‐10 Some information provided but there are some information gaps and the overall response does not

completely satisfy requirements 11‐20 Met expectations with minimum information to satisfy requirements 21‐30 Exceeded requirements with additional relevant information 31‐40 Far Exceeded requirements and expectation with proactive clarifications

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SECTION 7 – EXECUTION OF OFFER – CITY OF MESQUITE

THIS SHEET MUST BE COMPLETED, SIGNED, AND RETURNED WITH RESPONDENT'S PROPOSAL ~FAILURE TO SIGN AND RETURN THIS SHEET WILL RESULT IN THE REJECTION OF YOUR PROPOSAL~ 1. By signature hereon, the respondent offers and agrees to furnish the products and/or services at the prices quoted

and comply with all terms, conditions, requirements set forth per the RFQ/RFP documents and contained herein. 2. By signature hereon, the respondent affirms that he has not given, nor intends to give at any time hereafter, any

economic opportunity, future employment, gift, loan, gratuity, special discount, trip, favor or service to a public servant or MESQUITE representative in connection with the submitted Proposal. Failure to sign hereon, or signing with a false statement, shall void the submitted Proposal or any resulting contracts, and the respondent shall be removed from all vendor lists of MESQUITE.

3. By signature hereon, a corporate respondent certifies that it is not currently delinquent in the payment of any

Franchise Taxes due under Chapter 171, Texas Tax Code, or that the corporation is exempt from the payment of such taxes, or that the corporation is an out‐of‐state corporation that is not subject to the Texas Franchise Tax, whichever is applicable. A false certification shall be deemed a material breach of contract and, at MESQUITE's option, may result in cancellation of any resulting contract or purchase order.

4. By signature hereon, the respondent hereby certifies that neither the respondent nor the firm, corporation,

partnership or institution represented by the respondent, or anyone acting for such firm, corporation, or institution has violated the antitrust laws of this state, codified in Section 15.01, et. seq., Texas Business and Commerce Code, or the Federal antitrust laws, nor communicated the contents of the Proposal directly or indirectly to any competitor or any other person engaged in such line of business.

5. By signature hereon, the respondent certifies that all statements and information prepared and submitted in

response to this solicitation are current, complete and accurate. 6. By signature hereon, the respondent certifies that the individual signing this document and the documents made

part of the RFQ/RFP is authorized to sign such documents on behalf of the company and to bind the company under any contract that may result from the submission of this Proposal.

7. By signature hereon, the respondent certifies as follows: “Under Section 231.006, Texas Family Code, the respondent certifies that the individual or business entity named

in this contract, bid, or application 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.”

“Under Section 2155.004, Texas Government Code, the respondent certifies that the individual or business entity

named in this bid or contract is not ineligible to receive the specified contract and acknowledges that this contract may be terminated and payment withheld if this certification is inaccurate.”

“Under Section 2254.004, Texas Government Code, the respondent certifies that each individual or business

entity which is an engineer or architect proposed by respondent as a member of its team was selected based on demonstrated competence and qualifications only.”

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8. By signature hereon, the respondent certifies that no relationship, whether by relative, business associate, capital funding agreement or by any other such kinship exist between the respondent and an employee of MESQUITE, or the respondent has not been an employee of MESQUITE within the immediate twelve (12) months prior to your RFQ/RFP response. All such disclosures will be subject to administrative review and approval prior to MESQUITE entering into any contract with the respondent.

9. By signature hereon, the respondent affirms that no compensation has been received for participation in the

preparation of the specifications for this RFQ/RFP. (Ref. Section 3.102, Article 601b, V.T.C.S.) 10. The respondent represents and warrants that all articles and services quoted in response to this RFQ/RFP will

meet or exceed the safety standards established and promulgated under the Federal Occupational Safety and Health Law (Public Law 91‐596) and its regulations in effect or proposed as of the date of this RFQ/RFP.

11. By signature hereon, the respondent signifies its compliance with all federal laws and regulations pertaining to

Equal Employment Opportunities and Affirmative Action. 12. The respondent acknowledges the following addendum:

Addenda _________ through _________ Complete the following: FEI No: ______________________________ Charter No: ________________________________ SS No: ______________________________ State of Incorporation: ______________________ (If sole owner) (If a corporation) Submitted By: (Company Name) _______________________________________ _______________________________________ (Authorized Signature) (Date) ______________________________________ _______________________________________ (Printed Name) (Printed Title) _____________________________________________________________________________________ (Street Address) ______________________________________ _______________________________________ (County, State, Zip Code) (Telephone Number)

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REFERENCES

Five (5) Work References (Include: Names, Addresses, Phone No’s., Dates, Work Description and Contract Amounts.) 1.__________________________________________________________________________________________ ____________________________________________________________________________________________ ____________________________________________________________________________________________ 2.__________________________________________________________________________________________ ____________________________________________________________________________________________ ____________________________________________________________________________________________ 3.__________________________________________________________________________________________ ____________________________________________________________________________________________ ____________________________________________________________________________________________ 4.__________________________________________________________________________________________ ____________________________________________________________________________________________ ____________________________________________________________________________________________ 5.__________________________________________________________________________________________ ____________________________________________________________________________________________ ____________________________________________________________________________________________

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NOTICE

The following blank spaces in the contract are not to be filled in by the Respondent at the time of submitting his response. The contract form is submitted at this time to familiarize the Respondent with the form of contract, which the successful Respondent will be required to execute.

Also included for the bidder’s information is the Performance and Payment Bonds as well as the Contractor’s Affidavit of Payment and Release. These forms are not to be completed at the time of bid submittal but are included so that the bidder may become familiar with form verbiage.

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DESIGN/BUILD CONTRACT BETWEEN OWNER AND DESIGN/BUILDER

This DESIGN/BUILD CONTRACT (the “Contract”) is made and entered into by and between the CITY OF MESQUITE, a Texas municipal corporation (the “Owner”) and __________________, a ____________________, with its principal place of business at ____________________, Texas (the “Design/Builder”). This Contract is for the design and construction of a project identified as: ______________________________ located in the City of Mesquite, Dallas County, Texas (the “Project”). NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements stated herein, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, Owner and Design/Builder agree as follows:

ARTICLE 1 THE CONTRACT AND THE CONTRACT DOCUMENTS

(A) The Contract. The Contract between Design/Builder and Owner consists of this document and the other Contract Documents described in Paragraph 1(B). The Contract shall be effective as of ________________, the date of its approval, and that date shall also be considered the execution date of this Contract and Notice to Proceed. (B) The Contract Documents. The Contract Documents consist of this document, all Design Documents hereafter prepared by Design/Builder and approved by Owner in accordance with this Contract, Division 100 of the North Central Texas Council of Government’s Standard Specifications for Public Works Construction – North Central Texas (Fourth Edition; October 2004) (the “NCTCOG General Provisions”), as amended by the latest edition of City’s addendum to the NCTCOG General Provisions (4/19/2012 Revision) (hereinafter collectively called the “General Provisions”), along with any special provisions added thereto with the consent of Owner. The General Provisions are deemed to be a part of this Contract by reference, and shall be included as general provisions for use with Design Documents prepared by Design/Builder), Change Orders and Field Orders issued hereafter, along with any other written amendments or supplements executed by Owner and Design/Builder, as well as the following documents (if any):

Exhibit “A” – City of Mesquite Request for Qualifications: __________________________ Exhibit “B” – Insurance Requirements Exhibit “C” – Design/Builder’s Final Fixed Budget Proposal – Dated ________________ Exhibit “D” – City of Mesquite addendum to the NCTCOG General Provisions entitled “General Provisions”

(4/19/2012 Revision) Exhibit “E” – Performance Bond Exhibit “F” – Payment Bond Exhibit “G” – Design Criteria and Specifications All of which are hereby incorporated herein by reference and made a part of this Contract. (C) Enumerated Documents Form Entire Contract. Documents not specifically enumerated in Paragraph 1(B) of this Contract are not Contract Documents.

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(D) Contract Interpreted as a Whole. This Contract is intended to be an integral whole and shall be interpreted as internally consistent. Work required by any page, part, or portion of the Contract shall be deemed to be required Contract Work as if called for in the whole Contract and no claim for extra work shall be based upon the fact that the description of the Work in question is incomplete. (E) Provision of All Things Required. Anything that may be required, implied or inferred by the Contract Documents which make up this Contract, or any one or more of them, shall be provided by Design/Builder for the Contract Price. (F) Privity only with Design/Builder. Nothing contained in this Contract shall create, nor be interpreted to create, privity or any other relationship whatsoever between Owner and any person except Design/Builder. (G) Agreed Interpretation of Contract Terms. When a word, term, or phrase is used in this Contract, it shall be interpreted or construed first, as defined herein; second, if not defined, according to its generally accepted meaning in the construction industry; and third, if there is no generally accepted meaning in the construction industry, according to its common and customary usage. Headings are used herein solely for convenience. (H) Term “Include” Intended to be Encompassing. “Include”, “includes”, or “including”, as used in the Contract, shall be deemed in all cases to be followed by the phrase, “without limitation”. (I) Use of Singular and Plural. Words or terms used as nouns in the Contract shall be inclusive of their singular and plural forms, unless the context or their usage clearly requires a contrary meaning. (J) Definition of Material Breaches Not Exhaustive. The specification herein of any act, failure, refusal, omission, event, occurrence or condition as constituting a material breach of the Contract shall not imply that any other, non‐specified act, failure, refusal, omission, event, occurrence or condition shall be deemed not to constitute a material breach of the Contract. (K) Order of Precedence. In the event of any conflict, discrepancy, or inconsistency among any of the Contract Documents which make up this Contract, the following shall control:

(1) As between figures given on plans and scaled measurements, the figures shall govern;

(2) As between large scale plans and small scale plans, the large scale plans shall govern;

(3) As between plans and specifications, the requirements of the specifications shall govern; and (4) As between this document and the plans or specifications, this document shall govern.

(L) Administration. This Contract shall be administered on behalf of Owner by the Director of ___________________, or the director’s designee (hereinafter called the “Director”), and on behalf of the Design/Builder by its duly authorized representatives.

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ARTICLE 2 DESIGN/BUILDER'S REPRESENTATIONS

(A) Specific Representations. In order to induce Owner to execute this Contract and recognizing that Owner is relying thereon, Design/Builder, by executing this Contract, and without superseding, limiting, or restricting any other representation or warranty set forth elsewhere in this Contract, or implied by operation of law, makes the following express representations to Owner:

(1) Design/Builder is professionally and fully qualified to act as the design professional and the general contractor for the Project and is, and will remain, licensed to practice engineering and architecture and general contracting by all public entities having jurisdiction over Design/Builder or the Project;

(2) Design/Builder will maintain all necessary licenses, permits or other authorizations necessary to act as Design/Builder for the Project until Design/Builder's duties under this Contract have been fully satisfied;

(3) Design/Builder has the expertise, experience, and knowledge as well as the necessary plant, personnel and financial capability to perform the Design Services and the Work in accordance with the terms of this Contract;

(4) Prior to the execution of this Contract, Design/Builder has visited and inspected the Project site and the local conditions under which the Project is to be designed, constructed and operated, and Design/Builder has performed such tests, if any, as are necessary to determine the conditions under which the Work will be performed, and Design/Builder accepts the conditions of the Work site and has taken those conditions into account in entering into this Contract; and

(5) Design/Builder assumes full responsibility to Owner for the improper acts and omissions of its Subcontractors or others employed or retained by Design/Builder in connection with the Project.

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ARTICLE 3 REGULATORY GUIDELINES, REQUIREMENTS AND STANDARDS

(A) Generally. Design/Builder shall perform all Design Services described in, contemplated by, inferable from, or necessary or desirable to achieve the objectives stated in the Design Criteria and the Contract, including all Design Services necessary for the Project to be properly constructed by Design/Builder and used, operated and maintained by Owner in accordance with all applicable guidelines, requirements and standards. “Design Services” means any and all architectural, engineering and design services required to be performed by Design/Builder pursuant to the Contract and all labor, materials, supervision, equipment, computers, documents, and all other things necessary for the performance of such services. (B) Owner's Review of Design Services. Subject to Paragraph 13(G) of this Contract, Design/Builder shall submit all documents produced as part of the Design Services to the Director for review and approval in accordance with the terms of the Contract. However, any review or approval by the Director shall not relieve Design/Builder of or otherwise diminish its obligations under the Contract. The Director may direct Design/Builder to make changes to any design documents in order to conform such documents to Owner's objectives. Any changes by Design/Builder ordered by the Director shall not relieve Design/Builder of its obligations under this Contract unless, and only to the extent that, Design/Builder notifies Owner in writing, within five (5) days after receipt of Owner's directive to make changes, concerning any adverse impact on schedules, budgets, operational costs, operational performance, satisfaction of regulatory requirements, or other adverse impact that may result from the directed changes. Failure of Design/Builder to submit its notice within the five (5) day period constitutes a waiver by Design/Builder of any claim for an adjustment to the Design Schedule or the Contract Time. (C) Preparation of Site Information. Design/Builder shall prepare, as necessary, surveys and topographic information including aerial photographs needed to establish line and grade of sewers, location of property lines, and easements. Sewer easements, both construction and permanent, shall be referenced to property lines by field surveys, and plans shall include the location of any improvement as it relates to property lines. Owner expressly does not warrant any information provided by it in connection with preparation of the above‐mentioned information; Design/Builder, however, may reasonably rely on information provided by Owner to the extent the information has been prepared by Owner or an independent consultant hired by Owner to prepare the information specifically for this Project, without absolving Design/Builder from its responsibility to independently verify or investigate information that a reasonable, prudent professional architect or engineer should or would inquire about. (D) Retention of Geotechnical Consultants. In preparing the Design Documents, Design/Builder shall separately retain an experienced, qualified geotechnical consultant to evaluate all geotechnical considerations relating to the design and construction of the Project. Design/Builder shall be responsible for designing the Project in accordance with the analysis and recommendations of the geotechnical consultant. Owner expressly does not warrant any geotechnical information that may be provided by it for use in connection with preparation of the design documents; Design/Builder, however, may reasonably rely on geotechnical information that may be provided by Owner to the extent the information has been prepared by Owner or an independent consultant hired by Owner to prepare the information specifically for this Project, without absolving Design/Builder from its responsibility to independently verify or investigate information that a reasonable, prudent professional architect or engineer should or would inquire about. (E) Quality of Design Services. Design/Builder shall be responsible for the professional quality, completeness, accuracy, and coordination of Design Documents. Design/Builder shall provide Design Services that will result in an operationally cost‐efficient and economical facility that meets all environmental and regulatory requirements as of the date hereof, and uses the most appropriate available technology. Design/Builder shall provide for all quality control reviews required by sound professional architectural and engineering practices and by governmental authorities having jurisdiction over the Project.

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(F) Compliance with Laws and Regulatory Requirements. In providing Design Services, Design/Builder shall comply with the lawful requirements of all federal, state, and local authorities having lawful jurisdiction over the Project. Design/Builder shall design the Project to meet all applicable requirements of building control laws and regulations in relation to the design, construction, occupation, and operation of the Project, including, without limitation, environmental standards, fire and safety regulations, and requirements and compliance with all other applicable standards and codes. (G) Duty to Correct Errors. Design/Builder shall, without additional compensation, immediately correct any errors, omissions or deficiencies in its Design Services and Design Documents. (H) Schedule of Design Services. Design/Builder shall, within ten (10) calendar days after execution of the Contract, submit for Owner's approval the Design Schedule for the performance of Design/Builder's Design Services, which shall include allowance for reasonable time required for the Director's review of submissions and for approvals of authorities having jurisdiction over the Project. The Design Schedule shall, upon approval by the Director, be considered incorporated and made a part of this Contract. The Design Schedule, when approved by the Director, shall not, except for good cause, be exceeded by Design/Builder. Should Design/Builder at any time during the course of performing the Contract, have reason to believe that it will be unable to meet any completion date in accordance with the Design Schedule, it shall immediately notify the Director in writing. Design/Builder shall state the reason for the delay in the notice, including the party responsible, if any, and the steps being taken to remedy or minimize the impact of the delay. Failure of Design/Builder to submit such notice shall constitute a waiver by Design/Builder of any claim for an adjustment to the Contract Price, the Design Schedule, or the Contract Time. All extensions of time shall be governed by Articles 16 and 17 of this Contract. Subject to the provisions of Paragraph 13(G) of this Contract, Owner shall review and approve, where appropriate, the Design Schedule, or any portion thereof.

(I) Requirement to Design Within the Project Budget. Owner’s total fixed Project Construction Budget, for this Project is $_________________. This amount is established as a condition of this Contract, and shall provide the basis for the Design/Builder’s design decisions. Design/Builder, in consultation with Owner, shall determine what materials, equipment, component systems, and types of construction are to be included in the Contract Documents, and will make reasonable adjustments in the scope of the Project to bring it within the Project Construction Budget. With Director’s approval, Design/Builder may also include in the Contract Documents alternate bids to adjust the Construction Cost to the fixed limit. Owner may, in its sole discretion and only if circumstances require it, approve a higher fixed limit for the Project Construction Budget, without any increase in the fee for Design Services under this Contract. Any redesign or additional design service required to bring the Project within the Owner’s fixed Project Construction Budget shall be at Design/Builder’s sole expense.

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ARTICLE 4 PRELIMINARY CONSULTATION AND PROJECT ANALYSIS

(A) Determining the Project Objectives. Prior to the preparation of the Preliminary Design as required by Article 5 below, Design/Builder shall first consult in detail with Owner, and shall carefully analyze any information furnished by Owner concerning requirements of the Project, including but not limited to, any design, construction, scheduling, budgetary or operational requirements, limitations, and objectives. (B) Report on Project Requirements and Objectives. Based on its study and analysis, and no later than _______ (__) days after the effective date of the Contract, Design/Builder shall prepare and submit to Owner a written report detailing Design/Builder's understanding and analysis of the Project requirements and identifying any design, construction, scheduling, budgetary, operational, or other problems which may result from said requirements. The written report of Design/Builder shall also include proposed solutions, including design alternatives, if appropriate, addressing each of the identified problems. Design/Builder shall review such report with Owner and shall implement such changes as Owner may require as provided in Paragraph 3(B) of this Contract. (C) Scheduling. Based upon the Design/Builder recommendation that the Project Schedule should be “fast tracked” for the Design Phase, Owner agrees to review the proposed plan of action promptly. The proposed schedule should include sufficient budget allowances in anticipation of currently unknown refinements of budgets that may become necessary and in order to control Project costs.

ARTICLE 5 PRELIMINARY DESIGN

(A) Time for Preliminary Design. Not later than the date called for in the Design Schedule, Design/Builder shall prepare and submit to the Director a Preliminary Design for the Project. (B) Contents of Preliminary Design. The Preliminary Design shall address all requirements of the Project and shall include, without limitation, the following:

(1) preliminary drawings which illustrate each of the basic components of the Project including the size, scale, location, dimensions, and character of each building structure;

(2) preliminary drawings which illustrate each exterior view of the Project;

(3) preliminary drawings which illustrate a floor plan for each room, office, and functional area of the Project and the dimensions thereof;

(4) preliminary drawings and specifications illustrating and describing the architectural, electrical, mechanical, structural, and manufacturing systems of the Project;

(5) a written description of the materials and equipment to be incorporated into the Project and the location of same; and

(6) any other documents or things required to illustrate, describe or depict the Preliminary Design and the conformity of same with the requirements this Contract.

(C) To Be Reviewed with Owner. Design/Builder shall review the Preliminary Design with the Director and shall incorporate any changes ordered by the Director in regard to the Preliminary Design or the requirements of the Project.

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(D) Authorization to Proceed with Detailed Design. After review of the Preliminary Design and incorporation of any changes ordered by the Director, the Director shall authorize Design/Builder in writing to commence preparing the Detailed Design, or such part thereof as directed by the Director.

ARTICLE 6 DETAILED DESIGN

(A) Time for Preparation. Not later than the date called for in the Design Schedule, after the Director has authorized Design/Builder to commence with the Detailed Design as provided in Paragraph 5(D) above, Design/Builder shall prepare and submit to the Director the complete Detailed Design.

(B) The Detailed Design. The Detailed Design shall include all Design Documents which shall describe with specificity all elements, details, components, materials, and other information necessary for the complete construction of the Project and the rendering of the Project fully operational for its intended purposes, including satisfaction of all testing, permitting, qualifications, certifications, validations, and obtaining regulatory approvals by all applicable regulatory authorities required to render the Project and all its components operational and functionally and legally usable for their intended purpose. Subject to the provisions of Paragraph 13(G) of this Contract, Owner shall review and approve, where appropriate, the Design Documents, or any portion thereof.

(C) Design Documents. Design Documents means all the design documents provided by Design/Builder and approved by Owner pursuant to the Contract including, without limitation, those for use in constructing the Project, performing the Work, and the rendering of the Project fully operational, and shall include, without limitation, detailed plans, drawings, specifications, manuals, and related materials prepared by or on behalf of Design/Builder.

ARTICLE 7 CONSTRUCTION SERVICES

(A) General Intent. Design/Builder shall perform all Work necessary to construct the Project in accordance with this Contract, and to render the Project and all its components operational and functionally and legally usable for their intended purpose. (B) Work Defined. The term “Work” shall mean whatever is done by or required of Design/Builder to perform and complete its duties relating to the construction of the Project under the Contract, including, without limitation, the following:

(1) Construction of the whole and all parts of the Project in full and strict conformity with this Contract;

(2) The provision and furnishing, and prompt payment therefore, of all labor, supervision, services, materials, supplies, equipment, fixtures, appliances, facilities, tools, transportation, storage, power, fuel, heat, light, cooling, other utilities and things required for the construction of the Project;

(3) The procurement and furnishing of all necessary building permits and other permits required for the construction of the Project; (4) The creation and submission to Owner of detailed as‐built drawings depicting all as‐built construction;

(5) The furnishing of any required surety bonds and insurance as required by the Contract;

(6) The furnishing of all equipment and product warranties, manuals, test results and user guides required by the Contract or otherwise reasonably available to Design/Builder;

(7) The furnishing of all other services and things required or reasonably inferable from the Contract Documents, including the provisions of Article 9 below.

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ARTICLE 8 TIME FOR CONSTRUCTION: THE CONTRACT TIME

(A) Notice of Commencement. After Owner has approved the Design Documents (or phases of the Design Documents if the Work is capable of being performed in phases and the Owner desires to expedite the design and construction of the Project) for the Detailed Design, Owner shall issue a notice to commence the Work directing the Design/Builder to proceed with the Work (or phases of the Work if Design Documents are approved in phases) on the date indicated in the notice (the “Commencement Date”). The notice to commence Work shall be issued at least _____ (___) days prior to the Commencement Date. (B) Time for Completion. Design/Builder shall commence the Work on the Commencement Date, and the Work shall be carried out regularly and without interruption. Design/Builder shall substantially complete the Work not later than ___ calendar days from the date that a notice to proceed is given from Owner’s representative, or such other date as may by Change Order be designated (the “Scheduled Completion Date”). The number of calendar days between the effective date of the Contract and the Scheduled Completion Date is the “Contract Time”. Design/Builder shall achieve Final Completion of the Work no later than thirty (30) calendar days after achieving Substantial Completion. (C) Liquidated Damages for Delay in Substantial Completion. Design/Builder shall pay Owner the sum of FIVE HUNDRED AND NO/100 Dollars ($500.00) per day for each and every calendar day of unexcused delay in achieving Substantial Completion beyond the Scheduled Completion Date. Any sums due and payable hereunder by Design/Builder shall be payable, not as a penalty, but as liquidated damages representing an estimate of delay damages likely to be sustained by Owner, estimated at the time of executing this Agreement. Such liquidated damages shall apply regardless of whether Design/Builder has been terminated by Owner prior to Substantial Completion so long as Design/Builder's actions or inactions contributed to the delay. Such liquidated damages shall be in addition to, and not in preclusion of, the recovery of actual damages resulting from other defects in Design/Builder's performance hereunder for matters other than delays in Substantial Completion. When Owner reasonably believes that Substantial Completion will be inexcusably delayed, Owner shall be entitled, but not required, to withhold from any amounts otherwise due to Design/Builder an amount then believed by Owner to be adequate to recover liquidated damages applicable to such delays. If and when Design/Builder overcomes the delay in achieving Substantial Completion, or any part thereof, for which Owner has withheld payment, Owner shall promptly release to Design/Builder those funds withheld, but no longer applicable as liquidated damages. (D) Liquidated Damages for Delay in Final Completion. If Design/Builder fails to achieve Final Completion within thirty (30) calendar days after the date of Substantial Completion, Design/Builder shall pay Owner the sum of FIVE HUNDRED AND NO/100 Dollars ($500.00) per day for each and every calendar day of unexcused delay in achieving Final Completion beyond the date set forth herein for Final Completion of the Work. Any sums due and payable hereunder by Design/Builder shall be payable, not as a penalty, but as liquidated damages representing an estimate of delay damages likely to be sustained by Owner, estimated at the time of executing this Contract. Liquidated damages shall apply regardless of whether Design/Builder has been terminated by Owner prior to Final Completion so long as Design/Builder's actions or inactions contributed to the delay. Such liquidated damages shall be in addition to and not in preclusion of the recovery of actual damages resulting from other defects in Design/Builder's performance hereunder for matters other than delays in Final Completion. When Owner reasonably believes that Final Completion will be inexcusably delayed, Owner shall be entitled, but not required, to withhold from any amounts otherwise due to Design/Builder an amount then believed by Owner to be adequate to recover liquidated damages applicable to such delays. If and when Design/Builder overcomes the delay in achieving Final Completion, or any part thereof, for which Owner has withheld payment, Owner shall promptly release to Design/Builder those funds withheld, but no longer applicable as liquidated damages. (E) Time is of the Essence. All limitations of time set forth in this Contract are material and time is of the essence of the Contract.

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ARTICLE 9 ADDITIONAL DUTIES AND RESPONSIBILITIES OF DESIGN/BUILDER

(A) Design/Builder to Perform all Work Required by the Contract. The intent of this Contract is to require complete, correct and timely execution of the design and the Construction Work. Any and all Construction Work that may be required, reasonably implied or reasonably inferred by the Contract, or any part of it, as necessary to produce the intended result shall be provided by Design/Builder. (B) Strict Compliance with the Contract Documents. All Construction Work performed by Design/Builder shall be in strict compliance with this Contract. “Substantial compliance” is not strict compliance. Any Construction Work not in strict compliance with the Contract is defective. (C) Supervision of the Construction Work. The Construction Work shall be strictly supervised and directed using Design/Builder's best and highest skill and effort. Design/Builder shall bear full responsibility for any and all acts or omissions of those engaged in the Construction Work on behalf of Design/Builder. (D) Warranty of Construction Workmanship and Materials. Design/Builder warrants and guarantees to Owner that all labor furnished to perform the Construction Work under the Contract will be competent to perform the tasks undertaken and is the best quality obtainable, that the product of such labor will yield only first‐class results in strict compliance with the Contract, that materials and equipment furnished will be of high quality and new unless otherwise permitted by the Contract, and that the Construction Work will be of high quality, free from faults and defects and in strict conformance with the Contract. Any and all Construction Work not strictly conforming to these requirements shall be considered defective and shall constitute a breach of Design/Builder's warranty. (E) Commencement of Guarantee and Warranty. Special or specific guarantees and warranties which are required by the Contract to run for a fixed period of time shall commence running on the date of Substantial Completion of all Construction Work. (F) Design/Builder's Schedule of Construction. Design/Builder, within ten (10) days after the Commencement Date, shall submit to the Director for his information, and shall comply with, Design/Builder's Schedule of Construction for completing the Construction Work by the Scheduled Completion Date. The Schedule of Construction shall reflect the performance of all Construction Work on weekdays and non‐holidays. The Schedule of Construction shall be a detailed critical path (CPM) schedule in a form acceptable to Owner. The Schedule of Construction shall be revised at least monthly and shall be revised to reflect conditions encountered from time to time and shall be related to the entire Project. Each such revision shall be furnished to Owner. Strict compliance with the requirements of this Paragraph shall be a condition precedent for payment to Design/Builder, and failure to strictly comply with said requirements shall constitute a material breach of the Contract. No claim for an increase in the compensation due Design/Builder shall be allowed as a result of Design/Builder basing its compensation under this Contract upon an early completion schedule, or as a result of delays and costs attributable to completion later than the planned early completion date. (G) Record Copy of Contract Documents. Design/Builder shall continuously maintain at the site, for the benefit of Owner, an updated copy of this Contract, including one record copy of the Contract Documents marked to record on a current basis changes, selections and modifications made during construction. Additionally, Design/Builder shall maintain at the site, for the benefit of Owner, a copy of all Shop Drawings, Product Data, Samples, and other Submittals. Upon Final Completion of the Construction Work, or upon the Director's request, all of the documents described in this Paragraph shall be finally updated and delivered to Owner and shall become the property of Owner.

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(H) Review and Approval of Submittals. Design/Builder shall review, study, and approve, or take other necessary action upon all Shop Drawings, Product Data, Samples, and other Submittals to ensure that the Project will be constructed in a timely fashion in strict compliance with the Contract. No deviation from, substitution for, or other modification from the Contract Documents shall be allowed by Design/Builder in a shop drawing or submittal without written approval, in the form of a Change Order, from Owner. Design/Builder shall engage in prompt and adequate review of a Shop Drawing and other Submittals to maintain the Construction Schedule; Design/Builder also warrants it will use its best independent professional judgment in its review to determine compliance with the Contract Documents. (I) Owner's Option to Review Submittals. Owner shall also, in its discretion, have the right to review and approve Submittals, and if Owner so elects, Design/Builder shall not perform any portion of the Construction Work as to which Owner has required submittal and review until such Submittal has been approved by the Director. Approval by the Director, however, shall not be evidence that Construction Work installed pursuant to the Director’s approval conforms with the requirements of the Contract nor shall such approvals relieve Design/Builder of any of its responsibilities or warranties under the Contract. If Owner elects to review Submittals, Design/Builder shall maintain a Submittal log which shall include, at a minimum, the date of each Submittal, the date of any resubmittal, the date of any approval or rejection, and the reason for any approval or rejection. Design/Builder shall have the duty to carefully review, inspect and examine any and all Submittals before submission of same to Owner. Shop Drawings and other Submittals from Design/Builder do not constitute a part of this Contract. (J) Procurement and Review of Warranties. Design/Builder shall procure from all Subcontractors and Suppliers and shall transmit to the Director, all warranties required by the Contract. Design/Builder shall review all such warranties and shall certify to Owner that the warranties are in strict compliance with the requirements of the Contract. (K) Procurement of Operations and Maintenance Documentation. Design/Builder shall prepare or procure and shall transmit to the Director all documentation required by this Contract regarding the operation and recommended maintenance programs relating to the various elements of the Construction Work. (L) As‐Built Drawings. Design/Builder shall prepare and provide to the Director a complete set of all as‐built drawings which shall be complete and, except as specifically noted, shall reflect performance of the Construction Work in strict compliance with the requirements of this Contract. (M) Compliance with Labor Laws. Design/Builder shall assume all labor responsibility for all personnel assigned to or contracted for the performance of the Construction Work and agrees to strictly comply with all its obligations as employer with respect to said personnel under all applicable labor laws. (N) Testing, Inspections, and Approvals. Design/Builder shall be responsible for procuring all tests and inspections required by sound professional practices and by governmental authorities having jurisdiction over the Project. Design/Builder shall submit certified results of such tests to Owner. If the laws, ordinances, rules, regulations or orders of any public authority having jurisdiction require any Construction Work to be specifically inspected, tested, or approved, Design/Builder shall assume full responsibility therefore, pay all costs in connection therewith and furnish to Owner the required certificates of inspection, testing or approval. (O) Owner's Regulations and Applicable Laws. Design/Builder shall, during the course of the Construction Work, comply with any regulations or guidelines prescribed by Owner. Design/Builder warrants that it will comply with all public laws, ordinances, rules and regulations applicable to the services to be performed under the Contract, including without limitation, those relating to the terms and conditions of the employment of any person by Design/Builder in connection with the Construction Work to be performed under the Contract.

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(P) Compliance with Construction Regulations. Design/Builder shall perform the Construction Work in accordance with all construction codes, laws, ordinances, or regulations applicable to the design and execution of the Construction Work. Any fine or penalty which may be imposed as consequence of any violation of this provision shall be paid by Design/Builder, and Design/Builder shall fully indemnify and hold Owner harmless from all loss, damage, and expense, including attorney's fees, resulting from any such violation or alleged violation of codes, laws, ordinances, or regulations, regardless of a concurrent contribution by Owner, through negligence or other wrongful act, to such loss, damage, or expense, except that such indemnity shall not apply if the violation is solely and directly caused by a negligent or willful act or omission of Owner, its officers, agents, or employees.

(Q) Permits, Licenses and Notices. All construction and building permits, licenses and authorizations necessary for the construction of the Project shall be secured and paid for by Design/Builder. Design/Builder shall notify the Director when it has received said permits, licenses, and authorizations, and upon receipt shall supply the Director with copies of same. The originals of permits, licenses and authorizations shall be delivered to the Director upon completion of the Construction Work, and receipt of these documents by Owner shall be a condition precedent to final payment. Design/Builder shall also give and maintain any and all notices required by applicable laws pertaining to the construction of the Construction Work.

(R) Conditions to Site Access. While on Owner's property, all Design/Builder's employees and Subcontractors shall confine themselves to areas designated by the Director and will be subject to Owner's badge and pass requirements, if any, in effect at the site of the Construction Work.

(S) Site Safety and Security. Design/Builder shall take all reasonable steps and legally required measures at the site to comply with applicable safety regulations and standards and to adequately protect the Construction Work, stored materials, and temporary structures located on the premises, and to prevent unauthorized persons from entering upon the site. Design/Builder shall at all times safeguard Owner's property and employees from injury or loss in connection with the performance of the Contract. Design/Builder shall at all times safeguard and protect its own partially or completely finished Construction Work and that of the adjacent property and all adjacent construction work from damage. Design/Builder shall protect Owner's equipment, apparatus, machinery, and other property and all adjacent construction Work with boarding and other safeguards so as to keep the premises free from dampness, dirt, dust, or other damage and shall remove all such temporary protection upon completion of the Construction Work.

(T) Repair of Collateral Damage. Unless otherwise instructed by Owner, Design/Builder shall repair and return to original condition all buildings, streets, curbs, sidewalks, utilities or other facilities affected by Design/Builder's performance of the Construction Work.

(U) Cleaning the Site. Design/Builder shall keep the site reasonably clean during performance of the Construction Work. Upon Final Completion of the Construction Work, Design/Builder shall thoroughly clean the site and the Project and remove all waste, debris, trash and excess materials or equipment, together with Design/Builder's property therefrom.

(V) Owner's Access to Construction Work. At all times relevant to the Contract, Design/Builder shall provide access to the Construction Work to Owner and its designees without formality or other procedure.

(W) Decisions Regarding Aesthetic Effect. The Director's decisions in matters relating to aesthetic effect shall be final.

(X) Design/Builder to Remain an Independent Contractor. In performing both Design Services and Construction Work under this Contract, the relationship between Owner and Design/Builder is that of independent contractor, and the execution of this Contract does not change the independent status of Design/Builder. Design/Builder shall exercise independent judgment in performing its duties under this Contract and is solely responsible for setting working hours, scheduling or prioritizing the Contract work flow and determining how all Contract work is to be performed. No term or provision of this Contract or act of Design/Builder in the performance of this Contract shall be construed as making Design/Builder the agent, servant or employee of Owner, or making Design/Builder or any of its employees eligible for the fringe benefits, such as retirement, insurance and worker’s compensation, which Owner provides its employees.

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ARTICLE 10 CONTRACT PRICE

(A) Contract Price. Owner shall pay, and Design/Builder shall accept, as full and complete payment for the Design Services and Construction Work, a lump sum amount not to exceed _________________________________________ ($_________) DOLLARS (the “Contract Price”), payable on the basis of monthly billings submitted to and accepted by the Director. The Contract Price, based on Design Builder’s Fixed Price Proposal, unless changed by Supplemental Agreement or Change Order, represents the absolute limit of obligation or liability that Owner may ever have insofar as the cost for full and final completion of the Design Services and Construction Work, and the total of all payments to Design/Builder or its Subcontractors, are concerned. Should additional amounts be required to be expended, over and above the Contract Price, to achieve completion of the Construction Work, including Project construction, and payment to Design/Builder, in accordance with this Contract, liability for and payment of such additional amounts shall be the sole responsibility of Design/Builder and its Contract Surety herein, and Owner shall never be liable for same. Should the final Cost of the Construction Work and Design/Builder's compensation total less than the Contract Price, or any approved revision thereof, the difference shall inure to the benefit of Owner and no claim for all or any portion of said difference shall be valid against or payable by Owner. Owner's limitation of obligation or liability set out in this Paragraph shall be incontrovertible and unequivocal; any term or provision of the Contract, the Exhibits hereto, or of any Subcontract executed in furtherance of the anticipated Construction Work under the Contract shall not be construed or deemed to alter or waive this absolute condition. Likewise, Design/Builder's absolute responsibility for the completion of the Project in accordance with the Contract Documents, including the Plans and Specifications, and within the agreed cost constraints, as well as Design/Builder's agreement to bear all costs in excess of the Contract Price without recourse to Owner, if such excess costs are necessary for the completion of the Construction Work, shall be incontrovertible and undisputable, and shall take precedence over all other terms and provisions of this Contract and the Exhibits hereto, no part of which shall be deemed to alter, diminish or waive such obligations. (B) Design Services Fee. Owner shall pay, and Design‐Builder shall accept, as full and complete payment for the Design Services, the not‐to‐exceed amount of ______________ ($_________), payable on the basis of monthly billings as Design Services are completed and accepted by Owner. (C) Management of Construction Work. In addition to the Construction Work Design/Builder will perform, it will also provide all the usual and necessary traditional construction management services incident to construction projects of the nature and scope of this Project, for which the not‐to‐exceed amount of __________________ ($ ____________) (the “Management Fee”) is paid. The services required are not intended in any manner to diminish the overall responsibility of Design/Builder for the full and final completion of the Construction Work within the time and cost constraints specified in this Contract.

(D) Cost of Construction Work. The term "Cost of the Construction Work" shall mean costs necessarily incurred in the performance of the Construction Work during the Construction Phase. The following items are considered to be part of the Cost of the Construction Work:

(1) Wages paid for labor in the direct employ of the Design/Builder in the performance of the Work under any applicable collective bargaining agreement, or under a salary or wage schedule agreed upon by the Owner and Design/Builder, and including reasonable and customary benefits, if any, as may be payable with respect thereto. Such costs shall be at rates not higher than the standard pay in the locality of the Work except with prior consent of the Owner, and shall include the items set forth below in this Article. The reasonable cost of drug testing for all of Design/Builder's employees utilized on or hired for the Project, whether management or labor, shall also be a Cost of the Construction Work.

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(2) Salaries of Design/Builder's employees at or below the level of Project Design/Builder, when engaged on the Work and stationed at the Field Office, in whatever capacity employed. Employees engaged, at shops or on the road, in expediting the production or transportation of materials or equipment, shall be considered as stationed at the field office and their salaries paid for that portion of their time spent on this Work. (3) Cost of reasonable and customary pension contributions, hospitalization insurance, medical insurance, assessments or taxes for such items as unemployment compensation and social security, insofar as such cost is reasonably based on wages, salaries, or other remuneration paid to employees of the Design/Builder and included in the Cost of the Construction Work under Subparagraphs (C)(1), (C)(2), (C)(24), and (C)(25) herein. (4) Cost of all materials, supplies and equipment incorporated in the Work, including costs of transportation thereof. (5) Payments made by the Design/Builder to Subcontractors for Work performed pursuant to Subcontract, entered into in the performance of this Contract. (6) Cost, including transportation and maintenance, of all materials, supplies, equipment, temporary facilities and hand tools not owned by the workmen, which are employed or consumed in the performance of the Work, and cost less salvage value of such items used but not consumed which remain the property of the Design/Builder. (7) In connection with the Construction Work and management services and with prior Owner approval, rental charges of all necessary machinery and equipment, exclusive of hand tools, used at the site of the Construction Work, whether rented from the Design/Builder or others, including installation, repairs and replacements, dismantling, removal, costs of lubrication, transportation and delivery costs thereof, at rental charges consistent with those shown in the then current AED Manual. Provided further, that with respect to equipment and machinery rented from the Design/Builder, the rental rate shall not exceed 75% of the current AED Manual rental charges, and shall in no event cumulatively exceed the value of such equipment or machinery at the commencement of the rental period. Should rental charges reach such value for equipment and machinery rented from the Design/Builder, same shall thereafter belong to Owner, to be disposed of in accordance with Paragraph 10(E) below. Design/Builder shall furnish the Director with a list, to be updated monthly, of all equipment furnished for the Project. Equipment and machinery rented which becomes property of Owner pursuant to this paragraph shall be delivered to Owner upon Final Completion and acceptance by Owner of all Construction Work under the Project. (8) Cost of the premiums for all bonds and insurance coverage required by this Contract, or deemed necessary by the Design/Builder, in the normal pursuit of the Construction Work. Premiums for company‐wide coverage will be pro‐rated on the basis of value of Construction Work completed during the premium period. Cost of (payment of) all deductible amounts, not otherwise recoverable from third parties or not the result of a claim based upon Design/Builder's negligence, under any insurance furnished by Owner, or under insurance policies required by this Contract or deemed necessary by the Design/Builder in the normal pursuit of the Construction Work. (9) Taxes, if any, related to the Work. However, as Owner qualifies for exemption under Section 151.309 of the Texas Limited Sales, Excise and Use Tax Act, Design/Builder shall alert all Subcontractors to prevent erroneous payment of taxes covered by this exemption. Owner will provide exemption certificates as needed to confirm this exemption. (10) Permit fees, licenses, tests, royalties; deposits lost for causes other than the Design/Builder's negligence. (11) Minor expenses such as telegrams, long‐distance telephone calls, telephone service at the site, expressage, and similar petty cash items in connection with, and for the benefit of, the Work. (12) Cost of removal of debris. Removal of debris left by other contractors hired by the Owner is not a part of this Contract. (13) Cost incurred due to an emergency affecting the safety of persons and property. (14) Other costs incurred in the performance of the Construction Work, if and to the extent approved in advance in writing by Owner. (15) The reasonable, actual direct cost of data processing services as required for the Project. Such costs shall be specifically documented as having been done for the Project. (16) Legal costs growing out of prosecution of the Work for the Owner will only be reimbursable if such were incurred for the direct benefit of the Owner and with prior written approval of Owner.

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(17) Cost or rental of temporary portable buildings and toilets, as required; cost of utilities, ice, water, containers, cups, fire extinguishers, first‐aid supplies, safety equipment, off‐site storage space or facilities, progress photographs or video tape records. (18) All reasonable costs and expenditures necessary for the operation of the field office, such as stationery, supplies, blueprinting, furniture, fixtures, office equipment, etc. (19) Costs incurred by the Design/Builder in preparing and maintaining progress schedules, budgets, and reports required hereby. (20) Service fees assessed by Associated General Contractors of America and the Associated Building Contractors, but only as they relate to the Construction Work. (21) The reasonable, actual direct cost of computer services, including jobsite and main office terminal, for purposes of field payroll preparation and control. Such costs shall be specifically documented as having been done for the Project. (22) Design/Builder shall be responsible for enforcing warranties and for obtaining correction and/or replacement of all defective work not constructed or installed in accordance with the Contract Documents. All such corrective or remedial work required by the Contract Documents shall be performed by the responsible Subcontractors under the terms of their Subcontracts, without additional cost to the Owner. Costs incurred by Design/Builder to correct or remedy work performed by Design/Builder's own forces, or where the responsible Subcontractor fails to perform, shall not be a Cost of the Construction Work, and shall be Design/Builder's sole responsibility, at no additional cost to Owner; provided, however, Design/Builder shall be entitled to the proceeds of any Subcontractor maintenance bond, where such Subcontractor has defaulted in this regard. (23) Salaries of Design/Builder's Project Design/Builder and Contract Design/Builder, Safety Engineer, M/WBE Coordinator, and Procurement Specialist (for coordinating, costing, scoping and purchasing of major Work items), earned after the date of approval and funding of the GMP, whether stationed at the Field Office or at the Main Office of the Design/Builder, for that portion of their time spent on this Work. (24) Where not otherwise included in the Cost of the Construction Work under Subparagraphs (C)(15), (C)(19), and (C)(21), cost of central accounting services in connection with the Construction Work, such as payment of invoices, maintaining material cost records, computer services, preparation of W‐2 Reports, payroll tax reporting and preparation of other reports.

(E) Reconstruction Due to Casualty Loss. If, after a substantial loss from fire, flood, or similar cause not due to the default or neglect of the Design/Builder, any reconstruction work shall be considered part of the Scope of the Work.

(F) Discounts, Refunds, and Sales of Surplus Materials. All discounts, if realized, for prompt payment shall belong to Owner and shall be accounted for in the applicable GMP line item. All trade discounts, rebates, and refunds, and all returns from sale of surplus materials and equipment, shall likewise belong to Owner, and Design/Builder and Owner shall make provisions so that they can be secured, the amounts thereof to be accounted for in the applicable line item.

(G) Cost Not Included as Part of the Cost of the Construction Work and Services. The following items of cost and expense are not included as part of the Cost of the Construction Work to be paid by Owner to Design/Builder:

(1) Except as specifically provided above, salaries, wages, and other compensation of Design/Builder personnel stationed at Design/Builder’s principal office or offices other than the Project site. (2) Design/Builder’s home office overhead, including, but not limited to, any and all expenses associated with Design/Builder’s principal office and offices other than at the Project site. (3) Design/Builder’s capital costs and expenses, including interest on capital utilized in the performance of this Contract. (4) Rental cost for machinery or equipment except as expressly provided above. (5) Cost and expense incurred by Design/Builder, its Subcontractors, consultants, or suppliers, or anyone directly or indirectly employed by any of them, when such costs or expenses are the result of their negligence or failure to perform any required contractual duty. (6) Any and all cost or expense not specifically allowed pursuant to Paragraph 10(C) above.

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(H) Any and all cash discounts, rebates, or refunds relating to payments made by Design/Builder shall accrue to Owner and shall be credited or paid to Owner at its election. (I) Owner may, at its option, offset any amounts due and payable under this Contract against any debt (including taxes) lawfully due to Owner from Design/Builder, regardless of whether the amount due arises pursuant to the terms of this Contract or otherwise and regardless of whether or not the debt due to Owner has been reduced to judgment by a court.

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ARTICLE 11 PAYMENT OF THE CONTRACT PRICE

(A) Payment Procedure. Owner shall pay the Contract Price to Design/Builder in accordance with the procedures set forth in this Article 11, and, for purposes of the Construction Work, the applicable provisions of Item 109 of the General Provisions to the extent they do not conflict with this Article.

(B) Cost of Construction Work and Design/Builders’ Fixed Price Proposal. It is expressly understood and agreed by Owner and Design/Builder that the Contract Price, based on the Fixed Price Proposal submitted by Design/Builder, represents the sum total owed by Owner to Design/Builder for the performance of all Design Services, Management services, and Construction services required by this Contract. In no event shall the sum of payments for the Cost of the Construction Work, including Management Fees, and Design Services exceed the Design/Builder’s Fixed Price Proposal as represented in the Contract Price, unless adjusted by Change Order or written Supplemental Agreement.

(C) Request for Payment. On or before the twentieth (20th) day of each month, Design/Builder shall submit to Owner its request for payment in such form, and with supporting documentation, as Owner may require. Each request shall seek payment for the Cost of the Construction Work (including a percentage of the Management Fee based upon the percentage of Construction Work completed in accordance with the Contract, minus a five percent (5%) retainage) and Design Services, as defined and allowed by Paragraph 10(C) hereinabove incurred during the preceding month. The supporting documentation for each request for payment shall include, but not be limited to, certified payrolls, petty cash accounts, receipted invoices, and invoices with check vouchers attached. Similar documentation shall be included from each of Design/Builder’s Subcontractors and consultants. The request for payment shall be verified under oath by an officer of Design/Builder.

(D) Time for Payment. Within thirty (30) days after receipt by Owner of a properly prepared and certified request for payment, Owner shall make payment to Design/Builder in an amount equal to the total of the Cost of the Construction Work and Design Services properly performed or furnished as of the date covered by such request for payment, less retainage in the amount of five percent (5%), and less any payments previously made by Owner to Design/Builder.

(E) Right to Audit. Owner shall be entitled to rely upon the accuracy and completeness of the information furnished by Design/Builder in connection with its request for payment. Owner shall have the right, however, upon demand, to make a detailed examination, audit or inspection of Design/Builder’s books and records for the purpose of verifying the accuracy and completeness of such information. Any payment, settlement, satisfaction, or release made or provided during the course of performance of this Contract shall be made subject to City’s rights as may be disclosed by an audit under this paragraph or as established under law. In the event Owner determines that Design/Builder has been paid any sums not due Design/Builder, same shall be reimbursed by Design/Builder to Owner within forty‐eight (48) hours of demand by Owner.

(F) Condition Precedent to Final Payment. Notwithstanding any other provision in the Contract Documents, final payment shall not be made to Design/Builder until Design/Builder has fully performed all of its obligations under the Contract and the Design Services and the Construction Work are fully complete.

(G) Owner's Review of Pay Requests. Owner shall have the right to review all pay requests and the Design Services and the Construction Work at the Project site or elsewhere to determine whether the quantity and quality of the Construction Work and the Design Services is as represented in the pay request and as required by the Contract.

(H) Conditions Precedent to Payment. In addition to all other conditions precedent contained herein, it shall be a condition precedent to payment of any pay request that Design/Builder has submitted updated schedules for the performance of its Construction Work and Design Services as required by this Contract and that Design/Builder shall have furnished to Owner properly executed waivers of lien, in a form acceptable to Owner, from all Subcontractors, materialmen, Suppliers or others having lien rights, wherein they shall acknowledge receipt of all sums due pursuant to all prior pay requests and waive and relinquish any liens or lien rights relating thereto.

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(I) Passage of Title to Construction Work. Notwithstanding progress payments made by Owner under this Contract, title to Construction Work under this Contract does not pass to Owner until Final Completion and acceptance of the Project by Owner, at which point title to all Construction Work is deemed to pass immediately to Owner. The risk of loss regarding completed Construction Work that is paid for by Owner prior to Final Completion and acceptance remains with Design/Builder. (J) Design/Builder's Use of Progress Payments. Upon receipt of any payment from Owner, Design/Builder shall promptly pay all Subcontractors, materialmen, laborers, and Suppliers such amounts as they are entitled for the Construction Work covered by such payment. (K) Use of Joint Checks. If Owner becomes informed that Design/Builder has not paid a Subcontractor, materialman, laborer, or Supplier as provided herein, Owner shall have the right, but not the duty, to issue checks and payment then or thereafter otherwise due to Design/Builder naming Design/Builder and any such Subcontractor, materialman, laborer, or Supplier as joint payees. Such joint check procedure, if employed by Owner, shall create no rights in favor of any person or entity beyond the right of the named payees to payment of the check and shall not be deemed to commit Owner to repeat the procedure in the future nor to create any contractual or other relationship of any kind between Owner and such person or entity. (L) Payment Not a Waiver or Acceptance. No payment to Design/Builder, nor any use or occupancy of the Project by Owner, shall be interpreted or construed to constitute acceptance of any Construction Work not in strict compliance with the Contract, and Design/Builder expressly accepts the risk that defective Construction Work may not be detected (1) during any inspection by Owner, (2) prior to making of any payment to Design/Builder, or (3) before Owner's occupancy of the Project. (M) Withholding of Payment. Owner shall have the right to refuse to make payment and, if necessary, may demand the return of a portion or all of the amount previously paid to Design/Builder in an amount then believed by Owner to be adequate to cover the penalties, damages, and potential losses resulting or likely to result from:

(1) The quality of a portion, or all, of Design/Builder's Construction Work not being in accordance with the requirements of this Contract;

(2) The quantity of Design/Builder's Construction Work not being as represented in Design/ Builder's pay request, or otherwise;

(3) Design/Builder's rate of progress being such that, in Owner's opinion, Substantial Completion, Final Completion, or both, is inexcusably delayed;

(4) Design/Builder's failure to use Contract funds, previously paid Design/Builder by Owner, to pay Design/Builder's Project‐related obligations including, but not limited to, Subcontractors, laborers and material and equipment Suppliers;

(5) Evidence that the balance of the Construction Work cannot be completed in accordance with the Contract for the unpaid balance of the Contract Price; (6) Claims made, or likely to be made, against Owner or its property; (7) Loss caused by Design/Builder; (8) Design/Builder's failure or refusal to perform any of its obligations to Owner; or (9) Any other basis for withholding of payment specified in the General Conditions.

In the event that Owner makes written demand upon Design/Builder for amounts previously paid by Owner as contemplated in this Paragraph 11(M), Design/Builder shall promptly comply with such demand.

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(N) Limitation on Duty to Pay: In addition to the grounds for withholding payment as set forth in Paragraph 11(M) hereinabove, Owner and Design/Builder further agree as follows:

(1) Within thirty (30) calendar days of the effective date hereof, Design/Builder shall submit to Owner a Schedule of Values allocating the lump sum amount to the various portions of the Design Services and the Construction Work. Such Schedule of Values shall be prepared in such form, with such detail, and supported by such data as Owner may require to substantiate its accuracy. Design/Builder shall not imbalance its Schedule of Values nor artificially inflate any element thereof. The violation of this provision by Design/Builder shall constitute a material breach of this Contract. The Schedule of Values shall only be utilized as a basis for evaluating Design/Builder’s request(s) for payment and shall only constitute such basis after it has been acknowledged in writing by Owner;

(2) Each request for payment shall include a certification by Design/Builder of the percentage of completion, as of

the date of such request for payment, of those portions of the Design Services and the Construction Work as identified in the Schedule of Values. Design/Builder shall furnish to Owner such documentation or other supporting data as Owner may request in order to verify the percentage of completion certified by Design/Builder;

(3) Owner shall have no obligation to make payment to Design/Builder for any Design Services or Construction Work

where the amount for which such payment is requested is in excess of the amount allocated in the Schedule of Values for such Design Services or Construction Work based upon the percentage of completion as of the date of the request for payment.

(O) Unexcused Failure to Pay. If Owner, without cause or basis hereunder, fails to pay Design/Builder any amounts due and payable to Design/Builder within thirty (30) days after the date established in this Contract for payment of such amounts, then the payment shall bear interest in accordance with the Texas Prompt Payment Act, as amended. Provided, however, that Owner shall not be liable for interest due on any late or delayed progress payment or final payment caused by any good faith claim or dispute, any discrepancy in quantities, any failure to provide supporting documentation or other information required with the request for payment or as a precondition to payment under the Contract Documents, or due to any payment Owner has a right to withhold or not certify under the Contract Documents.

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ARTICLE 12 SUBSTANTIAL AND FINAL COMPLETION

(A) Substantial Completion. “Substantial Completion” means that stage in the progression of the Construction Work, as approved by Owner in writing, when the Project is sufficiently complete in accordance with the Contract that Owner can enjoy beneficial use or occupancy of the entire Project and can utilize it for all of its intended purposes. A condition precedent to Substantial Completion is the receipt by Owner of all necessary certificates of occupancy or other authorizations for the use and occupancy of the Project required by any governmental or regulatory authority. Owner reserves the right to occupy and use any part, phase or system of the Project when such part, phase or system is substantially completed, but such partial use or occupancy of the Project shall not result in the Project being deemed substantially complete, and such partial use or occupancy shall not be evidence of Substantial Completion. (B) Determination of Substantial Completion. When Design/Builder believes that the Construction Work is substantially complete, Design/Builder shall notify the Director in writing and shall submit to Owner a list of items remaining to be completed or corrected. The Director (or an independent consultant hired by Owner) will perform an inspection. If the Construction Work is substantially complete, in the sole opinion of Owner, Owner will prepare a Certificate of Substantial Completion which shall establish the date of Substantial Completion. The Certificate of Substantial Completion shall state the responsibilities of Owner and Design/Builder for Project security, maintenance, heat, utilities, damage to the Construction Work, and insurance, and shall fix the date, not longer than 30 days after the established date of Substantial Completion, within which Design/Builder shall complete any items of incomplete or defective Construction Work. The Certificate of Substantial Completion shall be submitted to Design/Builder for its written acceptance of the responsibilities assigned to it in such certificate. (C) Payment upon Substantial Completion. Upon Substantial Completion of the Construction Work, and upon execution by both Owner and Design/Builder of the Certificate of Substantial Completion, Owner shall pay Design/Builder, within thirty (30) days, all sums due Design/Builder, including such amount of retainage as the Owner in its sole discretion wishes to pay based upon the value of remaining performance, less the reasonable costs, as determined by Owner in Owner’s sole discretion, for completing all incomplete Construction Work and Design Services, correcting and bringing into strict conformance all defective and nonconforming Construction Work, and handling all outstanding or threatened claims. (D) Final Completion. “Final Completion” means the completion of all Design Services and all Construction Work required by, and in strict compliance with, the Contract, including Design/Builder's provision to Owner of all documents and things required to be provided by the Contract. (E) Determination of Final Completion. When Design/Builder believes that all of the Construction Work is finally complete, and Design/Builder is ready for a final inspection, Design/Builder shall so notify the Director in writing. The Director (or an independent consultant hired by Owner) will then make final inspection of the Construction Work and, if the Construction Work is complete in strict accordance with the Contract, and the Contract has been fully performed, then Owner will issue a Certificate for Final Payment, providing for payment of the remainder of the Contract Price, less any amount withheld pursuant to the Contract. (F) Payment after Final Completion. Owner shall make Final Payment of all remaining sums due to Design/Builder within thirty (30) days after Final Completion as reflected by Owner's Certificate for Final Payment, provided that all documents and things required to be delivered to Owner under this Contract have been delivered as required, and provided that all other conditions precedent to payment have been satisfied.

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(G) Conditions Precedent to Final Payment. Prior to being entitled to receive Final Payment, and as a condition precedent thereto, Design/Builder shall furnish Owner, in the form and manner required by the Director, the following:

(1) Owner’s standard Affidavit of Final Payment and Release, in particular certifying that all Subcontractors and Suppliers have been paid all sums lawfully due to them, and releasing Owner from all claims that Design/Builder had or might have asserted during the performance of this Contract; (2) if required by Owner, separate releases of lien or lien waivers from each Subcontractor, lower tier subcontractor, laborer, Supplier or other person or entity who has, or might assert a claim against Owner or Owner's property; (3) consent of surety to final payment; (4) a complete set of the as‐built drawings and the record set of Contract Documents; and (5) all product warranties, operating manuals, instruction manuals and other record documents, drawings and things customarily required of a Contractor, or expressly required herein, as a part of or prior to Project closeout.

(H) Acceptance of Final Payment a Waiver. Acceptance by Design/Builder of Final Payment shall constitute a waiver and release of all claims against Owner by Design/Builder except for those claims previously made in writing against Owner by Design/Builder, pending at the time of Final Payment and specifically identified on Design/Builder's pay request for Final Payment as unsettled at the time it submits its pay request.

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ARTICLE 13 OWNER'S DUTIES, OBLIGATIONS, AND RESPONSIBILITIES

In addition to payment, Owner shall undertake to perform the following: (A) Provide Project Information. Owner shall provide Design/Builder with information regarding Owner's requirements for the Project including any desired or required design or construction schedule. (B) Review of Documents. Owner shall review any documents submitted by Design/Builder requiring Owner's decision, and shall render any required decisions pertaining thereto. (C) Provide Notice of Defects. In the event Owner knows of any material fault or defect in the Construction Work, nonconformance with the Contract, or of any errors, omissions, or inconsistencies in the Design Documents, then Owner shall give prompt notice thereof in writing to Design/Builder. (D) Access to the Site and the Construction Work. Owner shall provide Design/Builder access to the site and to the Construction Work, and shall provide Design/Builder with such information, existing and reasonably available, necessary to Design/Builder's performance of the Contract as Design/Builder may request. (E) Cooperation to Secure Permits, Licenses, Approvals, and Authorizations. Owner shall cooperate with Design/Builder in securing any necessary licenses, permits, approvals or other necessary authorizations for the design, construction and certification of the Project. (F) Timely Performance. Owner shall perform the duties set forth in this Article 13 in a reasonably expeditious fashion so as to permit the orderly and timely progress of Design/Builder's Design Services and of the Construction Work. (G) Owner's Reviews, Inspections, Approvals, and Payments Not a Waiver. Owner's review, inspection, or approval of any Construction Work, Design Documents, Submittals, or pay requests by Design/Builder shall be solely for the purpose of determining whether such Construction Work and such documents are generally consistent with Owner's construction program and requirements. No review, inspection, or approval by Owner of the Construction Work or documents shall relieve Design/Builder of its responsibility for the performance of its obligations under the Contract or the accuracy, adequacy, fitness, suitability, or coordination of its Design Services or the Construction Work. Approval by any governmental or other regulatory agency or other governing body of any Construction Work, Design Documents, or Contract Documents shall not relieve Design/Builder of responsibility for the strict performance of its obligations under the Contract. Payment by Owner pursuant to the Contract shall not constitute a waiver of any of Owner's rights under the Contract or at law, and Design/Builder expressly accepts the risk that defects in its performance, if any, may not be discovered until after payment, including Final Payment, is made by Owner. (H) Delay or Forbearance Not Waiver. Owner's agreement not to exercise, or its delay or failure to exercise, any right under the Contract or to require strict compliance with any obligation of Design/Builder under the Contract shall not be a waiver of the right to exercise such right or to insist on such compliance at any other time or on any other occasion. (I) Documents Requested by Design/Builder. Owner shall furnish to Design/Builder, prior to the execution of this Agreement, any and all written and tangible material knowingly in its possession concerning conditions below ground at the site of the Project. Such written and tangible material is furnished to Design/Builder only in order to make complete disclosure of such material and for no other purpose. By furnishing such material, Owner does not represent, warrant, or guarantee its accuracy or completeness either in whole or in part, and shall have no liability therefore. If Design/Builder requests in writing, Owner shall also furnish surveys, legal limitations, and utility locations (if known), and a legal description of the Project site.

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(J) Approvals and Easements. Owner shall obtain all easements required for construction, and shall pay for necessary assessments and charges required for use and occupancy of the Construction Work. Design/Builder shall render such assistance as Owner may request in obtaining such easements, certificates of occupancy, and the like. (K) Right to Stop Construction Work. In the event Design/Builder fails or refuses to perform the Construction Work in strict accordance with the Contract, or is otherwise in breach of this Contract in any way, Owner may, at its option, instruct Design/Builder to cease and desist from performing further Construction Work, or any part thereof. Upon receipt of such instruction from Owner in writing, Design/Builder shall immediately cease and desist as instructed by Owner and shall not proceed further until the cause for Owner's instructions has been corrected, no longer exists, or Owner instructs that the Construction Work may resume. (L) Owner's Right to Perform Construction Work. In the event Owner issues such instructions to stop Construction Work, and in the further event that Design/Builder fails and refuses within seven (7) days of receipt of same to provide adequate assurance to Owner that the cause of such instructions will be eliminated or corrected, then Owner shall have the right to carry out the Construction Work with its own forces, or with the forces of other contractors, and Design/Builder shall be fully responsible for the costs incurred in correcting any defective or deficient Construction Work. The rights set forth in Paragraph 13(K) and this Paragraph 13(L) are in addition to, and without prejudice to, any other rights or remedies Owner may have against Design/Builder, including the rights to terminate or withhold payment as provided herein.

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ARTICLE 14 PROJECT DOCUMENTATION

(A) Maintenance of Project‐Related Records. Design/Builder shall maintain and protect all records relating in any manner whatsoever to the Project (the “Project Records”) for no less than four (4) years after Final Completion of the Project, and for any longer period of time as may be required by law or good management practice. (B) Availability of Project‐Related Records to Owner. All Project Records which are in the possession of Design/Builder or Design/Builders Subcontractors shall be made available to Owner for inspection and copying upon Owner's request at any time. Additionally, such records shall be made available upon request by Owner to any state, federal or other regulatory authorities, and any such authority may review, inspect and copy such records. The Project Records include, without limitation, all drawings, plans, specifications, Submittals, correspondence, logs, minutes, memoranda, photographs, tape or videotape recordings, or other writings or things which document the Project, its design, or its construction. Said records include those documents reflecting the cost of design and construction to Design/Builder.

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ARTICLE 15 PERSONNEL, SUBCONTRACTORS AND SUPPLIERS

(A) Subcontractor Defined. A “Subcontractor” means an entity which has a direct contract with Design/Builder to perform a portion of the Construction Work or the Design Services. For purposes of the Contract, Subcontractors shall also include those furnishing specially fabricated equipment and materials for the Project.

(B) Supplier Defined. A “Supplier” means an entity providing only equipment or materials for the performance of the Construction Work.

(C) Objections to Subcontractors. Upon execution of this Contract, and at such later times as may be applicable, Design/Builder shall furnish Owner, in writing, the names of persons or entities proposed by Design/Builder to act as Subcontractors on the Project. Design/Builder shall provide such information regarding such proposed Subcontractors as Owner deems necessary. Owner shall promptly reply to Design/Builder, in writing, stating any objections Owner may have to such proposed Subcontractors. Design/Builder shall not enter into a subcontract with an intended Subcontractor with reference to whom Owner objects. Any consent or failure to reject by Owner shall in no way relieve Design/Builder of any of its duties or warranties under this Contract.

(D) Terms of Subcontracts. All subcontracts and purchase orders with Subcontractors shall afford Design/Builder rights against the Subcontractor which correspond to those rights afforded to Owner against Design/Builder under this Contract, including those rights of Contract suspension, termination, and stop Construction Work orders as set forth in this Contract. It is expressly agreed that no relationship of agency, employment, contract, obligation, or otherwise shall be created between Owner and any Subcontractor of Design/Builder, and a provision to this effect shall be inserted into all agreements between Design/Builder and its Subcontractors.

(E) Design/Builder Responsible for Acts of Its Subcontractors. Should Design/Builder subcontract all or any part of the Construction Work, such subcontracting of the Construction Work shall not relieve Design/Builder from any liability or obligation under this Contract or under any applicable policy, law, or regulation, and Design/Builder shall be responsible for all and any acts, defaults, omissions, or negligence of its Subcontractors, Suppliers, and consultants.

(F) Personnel. In accordance with Article 2 above, Design/Builder shall employ and assign only qualified and competent personnel to perform any service or task concerning the Project. Design/Builder shall designate one such person as the Project Design/Builder. Absent written instruction from Design/Builder to the contrary, the Project Design/Builder shall be deemed to be Design/Builder's authorized representative and shall be authorized to receive and accept any and all communications from Owner. Key design and supervisory personnel assigned by Design/Builder to this Project are as follows:

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NAME FUNCTION/TITLE __________________ ____________________________

Evidence of the above‐named personnel's competence, such as a resume, shall be provided to Owner prior to said personnel beginning performance of the function indicated. So long as the individual named above remain actively employed or retained by Design/Builder, or any related entity or affiliate thereof, they shall perform the functions indicated next to their names unless Owner agrees to the contrary in writing or unless Owner requests removal of any such individual from the Project. In the event Owner requests the removal of any of the individuals named above, Design/Builder shall immediately comply and shall immediately replace such individual with a qualified substitute to whom Owner makes no objection. In the event one or more individuals not listed above subsequently assumes one or more of those functions listed above, Design/Builder shall be bound by the provisions of this Paragraph 15(F) as though such individuals had been listed above.

(G) Removal of Subcontractors and Personnel. If, at any time during the course of the Project, Owner reasonably determines that the performance of any Subcontractor or any member of Design/Builder's staff construction working on the Project is unsatisfactory, Owner's Representative may require Design/Builder to remove such Subcontractor or staff member from the Project immediately and replace the staff member at no cost or penalty to Owner for delays or inefficiencies the change may cause.

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ARTICLE 16 CHANGES AND EXTENSIONS OF TIME

(A) Owner's Right to Order Changes. Changes in the Design Services or the Construction Work under this Contract, consisting of additions, deletions, revisions, or any combination thereof, may be ordered unilaterally by Owner without invalidating the Contract. Such changes shall be communicated by Change Order, Field Order, or supplemental agreement, as applicable. Design/Builder shall proceed diligently with any changes, and same shall be accomplished in strict accordance with the following terms and conditions as set forth in this Article 16. (B) Changes and Extensions of Time. All change orders, changes requested by Design/Builder, or extensions of Contract Time occurring during construction of the Project related to actual Construction Work shall be governed by Articles 104 and 108 of the General Provisions incorporated in this Contract. All changes to the scope of Design Services or extensions of the agreed upon Design Schedule during the design process shall be made by mutual agreement of Owner and Design/Builder, and claims for an increase in design compensation due to a change in the scope of design construction Work or for an extension of time to the Design Schedule shall be made in writing within seven (7) calendar days after occurrence of the event that gives rise to the claim. All requests for additional compensation due to a change in the scope of Design Services, and all requests for an extension of time to the Design Schedule, shall include sufficient backup documentation for Owner to reasonably understand the request and the amount of time or compensation requested and to determine the merits of the request. (C) Continuing Duty to Perform Construction Work and Make Payment. In the event the parties are unable to agree on the terms of a Change Order or Supplemental Agreement, then Design/Builder shall continue to diligently perform the Design Services and the Construction Work, including any change directed by Owner by Change Order or Supplemental Agreement, and shall keep thorough records of the cost of performance of such Change Order or Supplemental Agreement. (D) Fiduciary Relationship. Design/Builder recognizes and accepts a fiduciary relationship of trust and confidence hereby established between Design/Builder and Owner and agrees that it shall at all times in good faith use its best efforts to advance Owner's interests and agrees to perform the Design Services and the Construction Work in the highest professional manner.

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ARTICLE 17 CLAIMS BY DESIGN/BUILDER

(A) Terms and Conditions of Claims. Claims by Design/Builder against Owner are subject to the terms and conditions of this Article 17, and strict compliance herewith shall be a condition precedent to any liability of Owner therefore. (B) Claim Procedures. All claims for additional compensation or additional time, regardless of their nature, when they occur, or whether they occur during the design or construction phase, shall be governed by the procedures of Article 104 of the General Provisions. (C) Continuous Duty to Provide Documentation. Design/Builder shall provide, and continue to provide, to Owner all such documentation, including cost and time records, as and when Owner may request so that Owner may evaluate Design/Builder's claim. (D) Duty to Continue Performance. Design/Builder shall continue its performance under this Contract regardless of the existence of any claims submitted by Design/Builder against Owner. (E) Claims for Increase in Compensation. In the event Design/Builder seeks to make a claim for an increase in the lump sum amount, as a condition precedent to any liability of Owner for any claim, Design/Builder shall strictly comply with the requirements of Paragraph 17(B) above and such notice shall be given by Design/Builder before proceeding to execute any alleged additional or changed Construction Work. Failure of the condition precedent to occur shall constitute a waiver by Design/Builder of any claim. (F) Limit of Owner's Liability for Increased Compensation. In connection with any claim by Design/Builder against Owner for compensation in excess of the not‐to‐exceed limit of the lump sum amount, any liability of Owner shall be strictly limited to the Cost of the Construction Work and Design Services as defined and allowed in Paragraph 10(C) above and shall in no event include, indirect, consequential, impact, or other costs, expenses, or damages of Design/Builder or its Subcontractors. Owner shall not be liable to Design/Builder for claims of third parties, including Subcontractors, for acts, omissions, events, or conditions for which Owner would not be liable to Design/Builder under the terms of the Contract. As a condition precedent to Owner's liability to Design/Builder for any loss or damage resulting from claims of third parties, including Subcontractors, such third parties must have complied with all conditions contained in their agreements with Design/Builder and such claims must have been submitted to Owner by Design/Builder in strict compliance with all the requirements of this Article 17. Owner shall not be liable to Design/Builder for claims of third parties including Subcontractors, unless and until the liability of Design/Builder has been established in a court of competent jurisdiction. (G) Owner’s Right to Order Acceleration and to Deny Claimed and Appropriate Time Extensions, in Whole or in Part. Design/Builder acknowledges and agrees that Substantial Completion or the Construction Work by or before the Scheduled Completion Date is, or may be, of substantial importance to Owner.

(1) Owner shall accordingly have the right in its sole discretion to order Design/Builder to accelerate its progress in such a manner as to achieve Substantial Completion on or before such date as Owner may reasonably direct and, upon receipt, Design/Builder shall comply with such order. (2) In the event that Design/Builder is otherwise entitled to an extension of Contract Time and has made claim therefore in accordance with Paragraph 16(B) above, Owner shall have the right in its sole discretion to deny all, or any part, of such extension of Contract Time by written notice to Design/Builder provided within seven (7) days of receipt of Design/Builder's claim. Should Owner deny Design/Builder's claim for an extension of Contract Time under this Subparagraph (2), either in whole or in part, Design/Builder shall proceed to prosecute the Construction Work in such a manner as to achieve Substantial Completion on or before the then existing Scheduled Completion Date.

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(3) If Designer/Builder would have been entitled to a time extension for a reason specifically allowed under the Contract Documents, for an amount of time that would have justified approval by Owner if not for the need and right to accelerate, Designer/Builder may initiate a claim for acceleration costs pursuant to Subparagraph 104.3 of the General Provisions. Any resulting claim for acceleration costs properly initiated by Designer/Builder under Subparagraph 104.3 of the General Provisions shall be limited to those reasonable and documented direct costs of labor, materials, equipment, and supervision solely and directly attributable to the actual acceleration activity necessary to bring the Construction Work back within the then existing approved construction schedule. These direct costs include the premium portion of overtime pay, additional crew, shift, or equipment costs if requested in advance by Designer/Builder and approved in writing by Owner. A percentage mark‐up for the protracted cost of premium on the existing performance and payment bonds and required insurance, not to exceed 5% will be allowed on the claimed acceleration costs. NO OTHER MARK‐UP FOR PROFIT, OVERHEAD (INCLUDING, BUT NOT LIMITED TO, HOME OFFICE OFVERHEAD), OR ANY OTHER COSTS WILL BE ALLOWED ON ANY ACCELERATION CLAIM. The Owner shall not be liable for any costs related to an acceleration claim other than those described in this Subparagraph (G)(3).

(H) Claims Resolved by Change Order. The resolution of any claim under this Article 17 shall be reflected by a Change Order or Supplemental Agreement executed by Owner and Design/Builder.

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ARTICLE 18 UNCOVERING AND CORRECTING CONSTRUCTION WORK

(A) Design/Builder Not to Cover Construction Work Contrary to Requirements. If any of the Construction Work is covered, concealed, or obscured contrary to the written request of Owner, or contrary to any provision of the Contract, said Construction Work shall, if required by Owner, be uncovered for inspection and shall be properly replaced at Design/Builder's expense without change in the Contract Time. (B) Owner's Right to Order Uncovering of Any Construction Work. If any of the Construction Work is covered, concealed, or obscured in a manner not inconsistent with Paragraph 18(A) above, it shall, if required by Owner, be uncovered for inspection. If such Construction Work conforms strictly with the Contract, the cost of uncovering and proper replacement shall be charged to Owner. If such Construction Work does not strictly conform with the Contract, Design/Builder shall pay the cost of uncovering and proper replacement. (C) Duty to Correct Rejected Construction Work. Design/Builder shall immediately proceed to correct Construction Work rejected by Owner as defective or failing to conform to the Contract. Design/Builder shall pay all costs and expenses associated with correcting such rejected Construction Work, including any additional testing and inspections made necessary thereby. (D) Duty to Correct Defective Construction Work Discovered after Final Completion. In addition to its warranty obligations set forth elsewhere herein, Design/Builder shall be specifically obligated to correct at its cost and expense any and all defective or nonconforming Construction Work for a period of two (2) years following Final Completion upon written direction from Owner. This obligation shall survive Final Payment by Owner and termination of the Contract. (E) No Period of Limitation Established. Nothing contained in Paragraph 18(D) shall establish any period of limitation with respect to other obligations which Design/Builder has under the Contract. Establishment of the two (2) year time period in Paragraph 18(D) above relates only to the duty to Design/Builder to specifically correct the Construction Work. (F) Owner's Option to Accept Defective Construction Work. Owner may, but shall in no event be required to, choose to accept defective or nonconforming Construction Work. In such event, the Contract Price shall be reduced by the reasonable costs of removing and correcting the defective or nonconforming Construction Work.

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ARTICLE 19 SUSPENSION AND TERMINATION

(A) Suspension of Performance. Owner may for any reason whatsoever suspend performance under the Contract. Owner shall give written notice of such suspension to Design/Builder specifying when such suspension is to become effective. (B) Ceasing Performance upon Suspension. From and upon the effective date of any suspension of performance ordered by Owner, Design/Builder shall incur no further expense or obligations in connection with this Contract, and Design/Builder shall cease its performance. Design/Builder shall also, at Owner's direction, either suspend or assign to Owner any of its open or outstanding subcontracts or purchase orders. (C) Claim for Costs of Suspension. In the event Owner directs a suspension of performance under this Article 19, through no fault of Design/Builder, and provided Design/Builder submits a proper claim as provided in this Contract, Owner shall pay Design/Builder as full compensation for such suspension Design/Builder's reasonable costs, actually incurred and paid, of:

(1) demobilization and remobilization, including such costs paid to Subcontractors; (2) preserving and protecting Construction Work in place; (3) storage of materials or equipment purchased for the Project, including insurance thereon; and (4) performing in a later, or during a longer, time frame than that contemplated by this Contract.

(D) Resumption of Construction Work after Suspension. If Owner lifts the suspension it shall do so in writing, and Design/Builder shall promptly resume performance of the Contract unless, prior to receiving the notice to resume, Design/Builder has exercised its right of termination as provided herein. (E) Termination by Owner for Convenience. Owner reserves the right, for any reason whatsoever (including, but not limited to, non‐appropriation of funding), or without reason, terminate performance under the Contract by Design/Builder for convenience. Owner shall give thirty (30) calendar days’ advance written notice of termination for convenience to Design/Builder. Design/Builder shall incur no further obligations in connection with the Contract, and Design/Builder shall stop Design Services and the Construction Work when such termination becomes effective. Design/Builder shall also, at Owner's direction, either terminate or assign to Owner outstanding orders and subcontracts. Design/Builder shall settle the liabilities and claims arising out of any terminated subcontracts and orders. Owner may direct Design/Builder to assign Design/Builder's right, title, and interest under terminated orders or subcontracts to Owner or its designee. Design/Builder shall transfer title and deliver to Owner such completed or partially completed Design Documents, Construction Work and materials, equipment, parts, fixtures, information, and Contract rights as Design/Builder has. (F) Submission of Termination Claim and Compensation for Termination for Convenience. When terminated for convenience, Design/Builder shall be compensated as follows:

(1) Design/Builder shall submit a termination claim to Owner specifying the amounts believed to be due because of the termination for convenience together with costs, pricing, or other data required by Owner. If Design/Builder fails to file a termination claim within three (3) months from the effective date of termination, Owner shall pay Design/Builder an amount derived in accordance with Subparagraph (3) below; (2) Owner and Design/Builder may agree to the compensation, if any, due to Design/Builder under this paragraph; (3) Absent agreement to the amount due to Design/Builder, Owner shall pay Design/Builder, as full compensation for termination for convenience, the following amounts:

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(a) the Cost of the Construction Work and Design Services, as defined and allowed by Paragraph 10(B) above, to the extent incurred or paid prior to receipt by Design/Builder of the notice of termination; (b) reasonable costs of settling and paying claims arising out of the termination of subcontracts or orders pursuant to Paragraph 19(E) hereinabove. These costs shall not include amounts paid in accordance with other provisions of this Contract.

In no event shall Design/Builder be entitled to recover lost profits or other incidental or consequential damages from Owner on account of a termination for convenience, or an erroneous termination for cause as described below. (G) Termination by Owner for Cause. If Design/Builder does not perform the Construction Work, or any part thereof, in a timely manner, supply adequate labor, supervisory personnel or proper equipment or materials, or if it fails to timely discharge its obligations for labor, equipment, and materials, or proceeds to disobey applicable laws, ordinances, rules, regulations, or orders of any public authority having jurisdiction, or otherwise commits a violation of a material provision of the Contract, then Owner may by written notice to Design/Builder, without prejudice to any other right or remedy against Design/Builder or others, terminate the performance of Design/Builder and take possession of the Project site and of all materials and equipment at the site and may finish the Construction Work by whatever methods it may deem expedient. In such cases, Design/Builder shall not be entitled to receive any further payment until the Construction Work is finished. (H) Erroneous Termination for Cause. In the event the employment of Design/Builder is terminated by Owner for cause pursuant to Paragraph 19(G) and it is subsequently determined by a court or other tribunal of competent jurisdiction that such termination was without cause, such termination shall thereupon be deemed a Termination for Convenience under Paragraph 19(E) and the provisions of Paragraph 19(F) regarding compensation shall apply.

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ARTICLE 20 OWNERSHIP OF DOCUMENTS

(A) Documents Owner's Property. The Design Documents and the Contract Documents, including but not limited to, the drawings, specifications, and other documents or things prepared by Design/Builder for the Project, shall immediately become and be the sole property of Owner. Any documents furnished by Owner shall remain the property of Owner. Design/Builder may be permitted to retain copies of the Design Documents and Contract Documents and any documents furnished by Owner for its records with approval in writing of Owner; provided, however, that in no event shall Design/Builder use, or permit to be used, any portion or all of such documents on other projects without Owner's prior written authorization.

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ARTICLE 21 INDEMNITY

(A) INDEMNIFICATION FOR DESIGN SERVICES. DESIGN/BUILDER, ITS OFFICERS, AGENTS AND EMPLOYEES AGREE TO ASSUME RESPONSIBILITY AND LIABILITY AND SHALL WAIVE ANY AND ALL CLAIMS, RELEASE, INDEMNIFY, AND HOLD HARMLESS, AT DESIGN/BUILDER’S COST, THE CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS, COSTS, DEMANDS, EXPENSES, FINES, JUDGMENTS, LOSSES, PENALTIES, DEMANDS, OR SUITS FOR INJURIES, DAMAGES, LOSS, OR LIABILITY OF WHATEVER KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY THE DESIGN/BUILDER OF THOSE DESIGN SERVICES CONTEMPLATED BY THE CONTRACT, TO THE EXTENT THAT SUCH DAMAGE IS CAUSED BY OR RESULTS FROM AN ACT OF NEGLIGENCE, INTENTIONAL TORT, INTELLECTUAL PROPERTY INFRINGEMENT, OR FAILURE TO PAY A SUBCONTRACTOR OR SUPPLIER COMMITTED BY THE DESIGN/BUILDER, ITS OFFICERS, AGENTS, EMPLOYEES, CONSULTANTS, AND SUBCONTRACTORS, WHETHER OR NOT CAUSED BY THE DESIGN/BUILDER, ITS OFFICERS, AGENTS, EMPLOYEES, CONSULTANTS, OR SUBCONTRACTS OF ANY OTHER ENTITY OVER WHICH THE DESIGN/BUILDER EXERCISES CONTROL SUBJECT TO THE LIMITATIONS IN TEXAS LOCAL GOVERNMENT CODE, §271.904 AND TEXAS CIVIL PRACTICE AND REMEDIES CODE, §130.002(b). INDEMNIFIED ITEMS SHALL INCLUDE REASONABLE ATTORNEY’S FEES AND COSTS, COURT COSTS AND SETTLEMENT COSTS IN PROPORTION TO THE DESIGN/BUILDER’S LIABILITY. (B) INDEMNIFICATION FOR CONSTRUCTION SERVICES. DESIGN/BUILDER COVENANTS AND AGREES TO, AND DOES HEREBY INDEMNIFY, HOLD HARMLESS, AND DEFEND, AT ITS OWN EXPENSE, OWNER, ITS OFFICERS, SERVANTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS OF WHATEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF THE WORK AND CONSTRUCTION SERVICES TO BE PERFORMED HEREUNDER BY DESIGN/BUILDER, ITS OFFICERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, LICENSEES, OR INVITEES, WHETHER OR NOT CASUSED IN WHOLE OR IN PART BY THE ALLEGED NEGLIGENCE OF THE OFFICERS, SERVANTS, AND EMPLOYEES OF THE OWNER. DESIGN/BUILDER LIKEWISE COVENANTS AND AGREES TO, AND DOES HEREBY, INDEMNIFY AND HOLD HARMLESS OWNER FROM AND AGAINST ANY AND ALL INJURIES, DAMAGE, LOSS, OR DESTRUCTION TO PROPERTY OF OWNER DURING THE PERFORMANCE OF ANY OF THE TERMS AND CONDITIONSOF THE CONSTRUCTION SERVICES’ PROTION OF THIS CONTRACT, WHETHER ARISING OUT OF IN WHOLE OR IN PART BY ANY AND ALL ALLEGED ACTS OR OMISSIONS OF OFFICERS, SERVANTS, OR EMPLOYEES OF OWNER. (C) DESIGN/BUILDER SOLELY RESPONSIBLE. DESIGN/BUILDER AGREES THAT DESIGN/BUILDER IS SOLELY RESPONSIBLE FOR THE SAFETY OF DESIGN/BUILDER AND DESIGN/BUILDER’S EMPLOYEES IN THE PERFORMANCE OF THIS CONTRACT AND AGREES TO HOLD HARMLESS CITY, ITS OFFICERS, AND AGENTS FROM AND AGAINST ANY LIABILITY ARISING FROM THE PERSONAL INJURY OR DEATH OF THE DESIGN/BUILDER OR ITS EMPLOYEES ARISING OUT OF OR IN CONNECTION WITH THIS CONTRACT. (D) NO THIRD PARTY RIGHTS. THE PROVISIONS OF THIS ARTICLE ARE SOLELY FOR THE BENEFIT OF THE PARTIES HERETO AND ARE NOT INTENDED TO CREATE OR GRANT ANY RIGHTS, CONTRACTUAL OR OTHERWISE, TO ANY OTHER PERSON OR ENTITY.

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ARTICLE 22 INSURANCE

(A) General Insurance Requirements. Design/Builder shall procure, pay for, and maintain during the term of this Contract, with a company authorized to do business in the State of Texas and otherwise acceptable to Owner, the minimum insurance coverage contained in Exhibit “B”, attached to and made a part of this Contract. (B) Liability Notwithstanding Insurance. Approval, disapproval, or failure to act by Owner regarding any insurance supplied by Design/Builder or its Subcontractors shall not relieve Design/Builder of full responsibility or liability for damages, errors, omissions or accidents as set forth in this Contract. The bankruptcy or the insolvency of Design/Builder’s insurer or any denial of liability by Design/Builder’s insurer shall NOT exonerate Design/Builder from the liability or responsibility of Design/Builder set forth in this Contract.

ARTICLE 23 SURETY BONDS

(A) Performance Bond and Payment Bond. Upon execution of this Contract, Design/Builder shall furnish to Owner separate performance and payment bonds in the penal sum of one hundred (100%) percent of the Contract Price, minus the estimated cost of the Design Services, but in no event less than the Construction Budget. The bonds shall be written by a corporate surety or sureties authorized to conduct an insurance business in the State of Texas and licensed to issue surety bonds in the State of Texas, and otherwise acceptable to Owner. The bonds shall conform to the requirements of Chapter 2253, Texas Government Code, as amended, and Article 7.19‐1, Texas Insurance Code, as amended. The bonds shall be written on forms approved for use by Owner, a copy of which bond forms are attached to and made a part of this Contract as Exhibits “E” and “F”. (B) Subcontractor Bonds. Each Subcontractor whose Subcontract is greater than $50,000 but less than or equal to $100,000 will likewise be required, as a condition of their Subcontract, to execute similar Payment Bonds (in the case of Subcontracts greater than $100,000, similar Performance and Payment Bonds will be required) in the full amount of each Subcontract, naming both Design/Builder and Owner as joint obligees. Subcontractors not required to provide a payment bond will not be paid progress payments, but shall be paid upon final completion and acceptance of their Construction Work.

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ARTICLE 24 GIFT TO PUBLIC SERVANT

(A) Owner may terminate this Contract immediately if Design/Builder has offered, conferred, or agreed to confer any benefit upon a City of Mesquite employee or official that the City of Mesquite employee or official is prohibited by law from accepting. (B) For purposes of this section, “benefit” means anything reasonably regarded as pecuniary gain or pecuniary advantage, including benefit to any other person in whose welfare the beneficiary has a direct or substantial interest, but does not include a contribution or expenditure made and reported in accordance with law. (C) Notwithstanding any other legal remedies, Owner may require Design/Builder to remove any employee of Design/Builder from the Project who has violated the restrictions of this section or any similar state or federal law, and obtain reimbursement for any expenditures made to Design/Builder as a result of the improper offer, agreement to confer, or conferring of a benefit to a City employee or official.

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ARTICLE 25 NONDISCRIMINATION

(A) As a condition of this Contract, Design/Builder covenants that Design/Builder will take all necessary actions to insure that, in connection with any work under this Contract, Design/Builder, his associates and subcontractors, will not discriminate in the treatment or employment of any individual or groups of individuals on the grounds of race, color, religion, national origin, age, sex, or handicap unrelated to job performance, either directly, indirectly or through contractual or other arrangements. Design/Builder shall also comply with all applicable requirements of the Americans with Disabilities Act, 42 U.S.C.A. §§12101‐12213, as amended. In this regard, Design/Builder shall keep, retain and safeguard all records relating to this Contract or work performed hereunder for a minimum period of three (3) years from final contract completion, with full access allowed to authorized representatives of Owner, upon request, for purposes of evaluating compliance with this and other provisions of the Contract.

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ARTICLE 26 DISPUTES

(A) In the event of any dispute under this Contract, the parties agree to work in good faith to resolve such disputes; provided, however, in the event a dispute remains unresolved after both parties engage in the resolution process, Owner’s determination in regard to any dispute shall be final.

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ARTICLE 27 MISCELLANEOUS PROVISIONS

(A) Governing Law; Venue. This Contract shall be governed by the laws and court decisions of the State of Texas. This Contract is performed in Dallas County, Texas, and exclusive venue for the enforcement of rights or legal obligations under this Contract shall be in Dallas County, Texas. (B) Successors and Assigns. This Contract shall be binding upon and inure to the benefit of the parties to this Contract and their respective successors and, except as otherwise provided in this Contract, their assigns. (C) Non‐Assignment. Design/Builder shall not assign this Contract, or any part of this Contract, without prior written consent of Owner. (D) Notices. All notices, communications, and reports required or permitted under this Contract shall be personally delivered or mailed to the respective parties by depositing same in the United States mail, postage prepaid, at the addresses shown below, unless and until either party is otherwise notified in writing by the other party, at the following addresses. Mailed notices shall be deemed communicated as of five days after mailing. If intended for Owner, to: Elizabeth Harrell Director Department of Parks & Recreation City of Mesquite 1515 North Galloway Avenue Mesquite, Texas 75185‐0137 If intended for Design/Builder, to: ______________________ ______________________ ______________________ ______________________ ______________________ (E) Publicity. No information relative to the existence or the details of the Design Services or the Construction Work shall be released by Design/Builder, either before or after completion of the Project, for publication, advertising, or any commercial purposes without Owner's prior written consent. (F) Severability. In the event that any portion or any portions of this Contract are held to be unenforceable by a court of competent jurisdiction, then the remainder of this Contract shall be enforced as though such portions had not been included, unless to do so would cause this Contract to fail of its essential purposes. (G) Entire Agreement. This Contract, with all Exhibits, amendments, or referenced attachments, together with Design/Builder's and Surety's performance and payment bonds for the Project, constitute the entire and exclusive agreement between Owner and Design/Builder with reference to the Project. This Contract supersedes any and all prior documents, discussions, communications, representations, understandings, negotiations, or agreements by and between the parties.

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EXECUTED as of the ___ day of _______________, 2016, by Owner, signing by and through its City Manager, duly authorized to execute same by the City Council on ________________, and by Design/Builder, acting through its duly authorized officials.

CITY OF MESQUITE ________________________________ (OWNER) (DESIGN/BUILDER) By: ____________________________ By: _____________________________ Cliff Keheley (Name)____________________ City Manager (Title)_____________________ ATTEST: ATTEST: By: ____________________________ By: _____________________________ Sonya Land, City Secretary Corporate Secretary APPROVED AS TO FORM: By: ____________________________ Assistant City Attorney

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PAYMENT BOND STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DALLAS §

THAT ____________________________, of the City of ______________________, __________________ County, State of Texas, (hereinafter referred to as Principal), and _______________________________ (hereinafter referred to as "Surety"), authorized under the laws of the State of Texas to act as Surety on bonds for principals are held and firmly bound unto the City of Mesquite (hereinafter referred to as "City") in the penal sum of $___________________ (an amount not less than 100% of the approximate total amount of the Contract) for the payment whereof, the said Principal and Surety bind themselves, and their heirs, administrators, executors, successors and assigns, jointly and severally, by these presents:

WHEREAS the Principal has entered into a certain written contract with the City, dated the ______day of _____________, 2017, for the RFQ/RFP 2017‐ 021 Design – Build for City Lake Aquatic Center Improvements to which said Contract is hereby referred to and made a part hereof and as fully and to the same extent as if copied at length herein;

NOW, THEREFORE, the condition of this obligation is such that the bond guarantees the full and proper protection of all claimants supplying labor and material in the prosecution of the work provided for in said Contract and for the use of each claimant, and that conversely should the Principal faithfully perform said Contract and in all respects duly and faithfully observe and perform all and singular the covenants, conditions and agreements in and by said Contract agreed to by the Principal, and according to the true intent and meaning of said Contract, and the claims and specifications hereto annexed, then this obligation shall be void; otherwise, to remain in full force and effect.

PROVIDED, HOWEVER, that this Bond is executed pursuant to the provisions of V.T.C.A. Government Code Chapter 2253, Public Work Performance and Payment bonds, as amended, and Article 53.201 of the Property Code, and all liabilities on this Bond shall be determined in accordance with the provisions of said articles to the same extent as if they were fully copied at length herein.

Surety, for value received, stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract, or to the work performed thereunder, or the Plans, Specifications or Drawings accompanying same shall in any way affect its obligation on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract or to the work to be performed thereunder.

Surety must be approved by the Texas State Board of Insurance under Article 7.19‐1 of the Insurance Code and authorized under the laws of Texas to act a surety on bonds for principals.

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IN WITNESS WHEREOF, the said Principal and Surety have signed and sealed this instrument on this the ___ day of ______________, 2017.

PRINCIPAL: SURETY:

Signature: Signature: _____________________________________ __________________________________ Printed Name: Printed Name: _____________________________________ __________________________________ Title: _________________________________ Title: ______________________________ Company:_____________________________ Company:__________________________ Street Address: Street Address: _____________________________________ __________________________________ (P.O. Box is not acceptable) (P.O. Box is not acceptable)

_____________________________________ __________________________________ City, State, Zip Code City, State, Zip Code Phone Number: ________________________ Dallas Telephone Number SURETY’S DALLAS COUNTY REGISTERED AGENT FOR SERVICE (REQUIRED):

Printed Name: _______________________________________________

Title: ___________________________________________

Company: _______________________________________________

Street Address: ___________________________________________ (P.O. Box is not acceptable) ___________________________________________ City, State, Zip Code

Phone Number: ___________________________________________ Dallas County Telephone Number (Attach dated Power of Attorney for Surety) ATTEST:

_______________________________________ City Secretary

APPROVED AS TO FORM: _______________________________________ City Attorney or Designee

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PERFORMANCE BOND STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DALLAS §

THAT _______________________________, of the City of ______________________, __________________ County, State of Texas (hereinafter referred to as “Principal”), and ______________________________ (hereinafter referred to as "Surety"), authorized under the laws of the State of Texas to act as Surety on bonds for principals are held and firmly bound unto the City of Mesquite (hereinafter referred to as "City") in the penal sum of $________________ (not less than 100% of the approximate total amount of the Contract as evidenced in the Proposal) for the payment whereof, the said Principal and Surety bind themselves, and their heirs, administrators, executors, successors and assigns, jointly and severally, by these presents:

WHEREAS the Principal has entered into a certain written contract with the City, dated the _______day of ___________, 2017, for the RFQ/RFP 2017‐021 DESIGN ‐ BUILD FOR CITY LAKE AQUATIC CENTER IMPROVEMENTS to which said Contract is hereby referred to and made a part hereof and as fully and to the same extent as if copied at length herein;

NOW, THEREFORE, the condition of this obligation is such that if the said Principal fully and faithfully executes the work and performance of the Contract in accordance with the Plans, Specifications and Contract Documents, including any extensions thereof, and according to the true intent and meaning of said Contract and the Plans and Specifications hereto annexed, then this obligation shall be void; otherwise, to remain in full force and effect.

PROVIDED, HOWEVER, that this Bond is executed pursuant to the provisions of V.T.C.A. Government Code Chapter 2253, Public Work Performance and Payment bonds, as amended, and Article 53.201 of the Property Code, and all liabilities on this Bond shall be determined in accordance with the provisions of said articles to the same extent as if they were fully copied at length herein.

Surety, for value received, stipulates and agrees that the Bond shall automatically be increased by the amount of any change order or supplemental agreement which increases the contract price with or without notice to the Surety and that no change, extension of time, alteration or addition to the terms of the Contract, or to the work performed thereunder, or the Plans, Specifications or Drawings accompanying the same shall in any way affect its obligation on this Bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract or to the work to be performed thereunder.

Surety must be approved by the Texas State Board of Insurance under Article 7.19‐1 of the Insurance Code and authorized under the laws of Texas to act a surety on bonds for principals.

Surety agrees that the bond provides for the repairs and/or replacement of all defects due to faulty materials and workmanship that appear within a period of two (2) years from the date of completion and acceptance of the improvement by the City.

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IN WITNESS WHEREOF, the said Principal and Surety have signed and sealed this instrument on this the ___ day of ______________, 2017.

PRINCIPAL: SURETY:

Signature: Signature: _____________________________________ __________________________________ Printed Name: Printed Name: _____________________________________ __________________________________ Title: _________________________________ Title: ______________________________ Company:_____________________________ Company:__________________________ Street Address: Street Address: _____________________________________ __________________________________ (P.O. Box is not acceptable) (P.O. Box is not acceptable)

_____________________________________ __________________________________ City, State, Zip Code City, State, Zip Code

Phone Number: ________________________ Dallas Telephone Number

SURETY’S DALLAS COUNTY REGISTERED AGENT FOR SERVICE (REQUIRED):

Printed Name: _______________________________________________

Title: ___________________________________________

Company: _______________________________________________

Street Address: ___________________________________________ (P.O. Box is not acceptable) ___________________________________________ City, State, Zip Code

Phone Number: ___________________________________________ Dallas County Telephone Number (Attach dated Power of Attorney for Surety)

ATTEST:

_______________________________________ City Secretary

APPROVED AS TO FORM:

_______________________________________ City Attorney or Designee

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CONTRACTOR'S AFFIDAVIT OF FINAL PAYMENT AND RELEASE STATE OF TEXAS )( ) KNOW ALL MEN BY THESE PRESENTS: COUNTY OF _____________ )(

BEFORE ME, the undersigned authority, on this day personally appeared, ("Affiant"), who, after being by me duly sworn, deposes and says that he/she is (title), of (company name), of County, State of Texas (the "Contractor"), which said Contractor was awarded the contract dated the day of , for the construction of the (the "Work"), for a total consideration of Dollars to be paid to the said Contractor (the "Contract"), and that Affiant has full power of authority to make this affidavit.

That the City of Mesquite (the "City") has approved the final estimate on said Work, and that the said Contractor has fully

satisfied and paid any and all claims that may be covered by Chapter 53 of the Texas Property Code, and V.T.C.A. Government Code Chapter 2253, or any other applicable statutes or charter provisions, and that all just bills for labor and materials have been paid and discharged by said Contractor insofar as they pertain to the Work in question.

That in addition to any funds which may have been previously paid by the City, the Contractor hereby accepts the amount of

Dollars as FULL AND FINAL PAYMENT under the aforementioned Contract, and hereby waives and releases any right Affiant and/or the Contractor may have to pursue claims of any nature against the City arising out of or in any manner connected with the performance of the Work and/or the Contract, including but not limited to claims of third parties that supplied material and/or labor for the Work for or through the Contractor ("Subcontractors"), as well as claims for delay, additional compensation or for recovery of liquidated damages which may have been withheld by the City. The Contractor shall defend, hold harmless and indemnify the City from any such claims of such Subcontractors. The Contractor further releases the City from any claim or liability arising from any act or neglect of the City related to or connected with the Contract. This affidavit is given pursuant to the final payment provisions of the Contract, and shall not be deemed to alter or modify the terms and provisions of said Contract. AFFIANT: SUBSCRIBED AND SWORN TO BEFORE ME, this the _______ day of_____________ _ Signature (Notary Public, in and for the State of Texas) Printed Name Title (Printed Name of Notary) Company My commission expires: Notary Seal: Street Address (P.O. Box is not acceptable) City, State, and Zip Dallas County Phone Number

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CONTRACTOR'S AFFIDAVIT OF RELEASE OF LIENS

TO CITY OF MESQUITE (Owner): City Project No.: _______________________

Contract For: __________________________

Contract Date: day of_____

PROJECT (name, address)

State of: Texas County of: Dallas

The undersigned hereby certifies that to the best of his knowledge, information and belief, except as listed below, the Affidavit of Final Payment and Release attached hereto include the Contractor, all Subcontractors, all suppliers of materials and equipment, and all performers of Work, labor or services who have or may have liens against any property of the Owner arising in any manner out of the performance of the Contract referenced above.

EXCEPTIONS: (If none, write "None". If required by the Owner, the Contractor shall furnish bond satisfactory to the Owner for each exception.)

Supporting Documents Attached Hereto: CONTRACTOR:

1. Contractor's Affidavit of Final Payment and Release, conditional upon receipt of Address: final payment.

2. Consent of Surety Company to Final Payment BY:

Notary Seal: Subscribed and sworn to before me this ________day of Notary Public My Commission Expires: ____________________________

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AFFIDAVIT OF PARTIAL WAIVER OF LIEN AND RELEASE

Bid Description: Bid Number:

The undersigned, for and in consideration of the payments made to it by , (the Contractor) for labor employed in and/or materials furnished for the construction of the above‐referenced project pursuant to the above‐referenced contract, hereby certifies as follows:

1. The undersigned has previously received payment in the amount of , for all deliveries of material to and/or for all work performed in the construction of the project, as of day of .

2. In consideration of the above‐mentioned payment, the undersigned does hereby waive, release and quit claim in favor of the City of Mesquite (the Owner), each and every party acquiring title to and/or making a loan on the project, company, or companies examining and/or insuring title to the project and any and all of their successors and assigns, all rights that presently exist or hereafter my accrue to the undersigned to assert a lien upon the land and improvements comprising the project by virtue of any law in the jurisdiction in which the land and improvements are situated or any amendment of said law regarding the rights of a contractor, subcontractor, employee, supplier or materialman to assert a lien or claim against the project.

3. The undersigned has not and will not assign any claim for payment or right to perfect a lien against the project and the undersigned has the right, power and authority to execute this Affidavit, Waiver of Lien and Release.

4. The undersigned warrants that all employees and subcontractors employed by it and all suppliers or materialman from which it has acquired materials incorporated into the project have been paid in full and that none of such employees, subcontractors, suppliers or materialman have any claim, demand or lien against the project.

5. No security interest has been given or executed by the undersigned for or in connection with any materials, appliances, machinery, fixtures or furnishing placed upon or installed in the project.

The Affidavit, Waiver of Lien and Release shall be an independent covenant and shall operate and be effective with respect to work and labor done and materials furnished under any supplemental contractor or contracts, whether oral or written, for extra or additional work on the project and for any further work done or materials furnished at any time with respect to the project subsequent to the execution hereof.

IN WITNESS WHEREOF, the Affidavit, Waiver of Lien and Release have been executed on this ________ day of

(Name of Company)

WITNESS: BY: ________________________________

Notary Seal: Subscribed and sworn to before me this _____day of________________________ _______________________________________ Notary Public: My Commission Expires: ______________________

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Section DC

DESIGN CRITERIA & SPECIFICATIONS

Table of Contents

DIVISION 1 General Requirements

Section 01010 Scope of Work 100 Section 01300 Project meetings 106 Section 01700 Project Closeout 107 Section 01710 Cleaning 108 DIVISION 2 ‐ 16 Shall be prepared by Contractor as needed to satisfy construction requirements of the

Preliminary Design.

End

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City Lake Aquatic Center: Water Wall

November 8, 2016 __________________________________________________________________________

Design Criteria & Specifications Scope of Work Section 01010

Design, engineer and construct a water wall feature and associated site modifications at the City of Mesquite’s City Lake Aquatic Center, 200 Parkview Street, Mesquite, Texas. The contractor shall be responsible for executing the work necessary to provide a fully functioning and complete facility which shall include but may not be limited to what is indicated and described within this document. All work shall be designed, engineered and constructed to the current Building Codes of the City of Mesquite, City Standards, and Texas Accessibility Standards.

1- Tree protection: Provide appropriate protection around trees adjacent to work area to prevent harm during demolition and construction.

2- Demolition: Remove affected landscaping, fencing and pipe/fabric screening structure in project area. Remove spoils and properly dispose of.

3- Grading: Prepare immediate site and subgrade for foundation/slab in accordance with the foundation design. Perform final grading to provide positive drainage away from shelter.

4- Foundation/structure: Construct an engineered concrete foundation and vertical structure appropriate to loading requirements of final design. Structure shall not rely on or effect the existing pool structure.

5- Water Wall feature: Provide a 76’ long concave water fall feature with a height of approximately 12’ above pool deck behind the upper level activity pool. a- Provide a low volume “bridal veil” type waterfall approximately 70’ long in the center of the

wall. Water shall fall into the existing pool from a ledge which projects 6’ to 8’ over the pool. b- This will create a “grotto” in the pool of approximately 4’ to 6’ deep behind waterfall. c- Sides of wall shall turn back to provide the appearance of a thick rock cliff. d- The pool side face and the sides shall be finished with man-made natural looking rock

shapes, carved/molded into the surface material or applied. Surface shall be natural but shall not allow or encourage climbing of the wall.

e- There shall be no open gap between the rock finish and edge of the pool deck. f- The back is visible from the parking lot and baseball field therefore shall be appropriately

finished but not necessarily to the same level as the front face. g- Construction and equipment shall have a minimum one-year contractor’s warranty.

6- Alternate #1- reduce the water fall length to approx. 40’ in the center of the 76’ long wall. “Step-down” height of wall on both ends.

7- Alternate #2- Provide a similar man-made rock finish to the three flat sides of the adjacent kid’s slide stairs.

8- Electrical: Service shall be provided from the existing electric panel. Route underground. Conceal in structure, no exposed conduit. Provide a separate lockable control box adjacent to new pump with time clock controller as well as connect to existing available control switch in control panel located in Pool Office.

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9- Plumbing: Engineer and provide necessary water supply from existing pool system post-filtration. Provide a separate pump to lift water to the top of the falls. Pump shall be located behind wall.

10- Construction access: during construction the contractor shall be allowed to have direct access to the site through the existing chain link fencing behind the pool, however, temporary provisions shall be provided to secure the pool at all times.

11- Final clean up: Clean site and properly dispose of spoils, debris and trash. 12- Submittals/Shop Drawings - Submit the following items to the Park Project Manager for review

and acceptance: a. Shop drawings and engineering specifications for foundation and structure b. Samples of man-made stone (color and appearance) c. Plumbing drawings d. Electrical drawings e. Pool equipment f. Manufacturer’s warranty information

13- Schedule: Work must be substantially complete by May 15, 2017. Contractor shall complete work, perform final cleaning and vacate site by May 22, 2017.

14- Electronic files of the construction drawings for the original pool are available upon request.

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15- Site Plan:

76” curved retaining wall/pool edge

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16- Views from back (parking lot) and front (pool)

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17- Concept view of 76’ long concave man-made rock Water Wall feature with grotto

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18- Conceptual Section thru water wall

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SECTION 01300 PROJECT MEETINGS

PART 1 GENERAL 1.01 Pre‐Construction Meeting

A pre‐construction meeting shall be held in the Parks and Recreation Department Conference Room prior to beginning of the work. It shall be held at a time to be designated by the Park Project Manager, but no later than 10 days after the date of the Notice to Proceed. The City of Mesquite and its Representatives referred to as the “owner” and Contractor shall be present. The following shall serve as a minimum agenda:

- Introductions and responsibilities

- Review of the Scope of Work

- Review of the tentative Construction Schedule

- Discussion regarding critical work sequencing

- Processing of field decisions and change orders

1.02 Progress Meetings

Progress meeting shall be scheduled on an as‐needed basis on dates mutually agreed upon. Contractor and necessary Owners shall be present. Minimum agenda shall be:

- Review of work progress

- Review of schedule

- Note field observations, problems and decisions

- Status of submittals

- Status of Request for Information

- Status of Changes

END OF SECTION 01300

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SECTION 01700 PROJECT CLOSEOUT

PART 1 GENERAL 1.01 Description of Requirements

Definitions: Closeout is hereby defined to include activities occurring after the “Substantial Completion” used to complete the final requirements of the contract, such as (if applicable) but not necessarily limited to: submittal of warranties, field notes, start‐up training of Owners, transfer of utilities, transfer of keys, delivery of surplus inventory and completion of punch list.

1.02 Record Documents

The Contractor shall be responsible for preparation of “As‐built Drawings” consisting of field observations pertaining to utility connections, grading, field adjustments. Relevant response from requests for Information, Change Orders, Owner directives shall be noted on the documents. The documents shall be marked “Record Documents” and dated. Transmit 2 hardcopies and an editable electronic format to Owner’s Representative.

1.03 Owner’s Manual

The Contractor shall be responsible for preparing a warranty/maintenance booklet containing information about material, products, and systems incorporated into the work and manufacturer’s operating/maintenance instructions. Bind into a single booklet, mark with the Project name and date. Transmit 2 hardcopies and an editable electronic format to Owner’s Representative.


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SECTION 01710 CLEANING

PART 1 GENERAL 1.01 Requirements of Regulatory Agencies

Pollution Control: Conduct clean‐up and disposal operations to comply with local ordinances and anti‐pollution laws. Burning or burying of rubbish and waste materials on the project site is not permitted. Disposal of volatile fluid wastes (such as mineral spirits, oil or paint thinner) shall be conducted at an appropriately licensed disposal facility.

1.02 During Construction

A. The Contractor shall oversee cleaning and ensure that the facility and grounds are maintained free from

accumulation of waste materials and rubbish.

B. Clean up site and dispose of waste materials, rubbish and debris daily.

C. Provide appropriate containers and locate on site for collection.

D. Remove waste materials, rubbish and debris from site and legally dispose of at a public dumping area.

E. Schedule routine clean up to keep the work site in clean and orderly condition at all times.

1.03 Final Cleaning

A. at completion of construction and just prior to acceptance or occupancy, conduct a final cleaning of

construction items and area.

B. Repair, patch and touch up marred surfaces to match adjacent finishes.

C. Broom clean paved surfaces; rake clean surrounding landscaping.

D. Wash down exterior surfaces.
